Education Reform Bill

§Lord Morton of Shuna moved Amendment No. 276C:
Page 200, line 32, at end insert—("9. The Commissioners shall submit an annual report to Parliament.").

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The noble Lord said: In speaking to this amendment, I shall be speaking also to Amendments Nos. 279CA and 279E in the name of the noble Lord, Lord Allen of Abbeydale, which are also in this group.

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Amendment No. 276C is intended to add to Schedule 9 an obligation on the commissioners to submit an annual report to Parliament. Amendment No. 279CA is to add to Clause 174 the same obligation in rather fuller language:
The commissioners shall make an annual report to a Select Committee of both Houses of Parliament appointed for the purposes of this Act on their proceedings, and the Select Committee shall lay the annual report before Parliament with such comments (if any) as they think fit".

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If I may say so in anticipation of the remarks of the noble Lord, Lord Allen of Abbeydale, he continues the progression of this group and his amendment is rather longer even than my second amendment.

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These amendments are directed to the problem that the commissioners are exercising a power to secure that the statutes of each qualifying institution have the various provisions enumerated in Clause I 74. This necessarily entails that there should be alterations to the statutes and ruling documents, if I may take it in that wide sense, of the various universities. Some of these are Acts of Parliament, some of them have other bases. But it is appropriate that if there is to be this power to secure change, the exercise of the power should be supervised by Parliament or at least watched by Parliament and commented on. It is with that intention that these two amendments, to which my name is attached along with that of the noble Lord. Lord Grimond, are put down. I beg to move.

I have great sympathy with the amendments just moved by the noble Lord, Lord Morton of Shuna, more particularly because in my Second Reading speech I recommended that what is proposed should be done.

I invite the Committee to look for a moment at my Amendment No. 279F on page 12 of the Marshalled List. It is quite long. I have put it down in genuine puzzlement as to the precise effect of the Bill as it stands on relations between the findings of the commissioners and the supervision of Parliament. Let me make it clear that I am not suggesting anything with the desire of holding things up. The procedure is complicated enough already and can
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take some time. The idea of having commissioners is presumably modelled on the two Acts of 1877 and 1923 applying to Oxford and Cambridge and the 1898 Act applying to London. On that occasion there was a universities committee of the Privy Council and there was provision that they resolve any dispute and that amendments which they had agreed to or other non-controversial ones were laid before Parliament and could be prayed against.

What happens this time? The position is different in that we now have the Department of Education with a direct interest in universities. That used not to be the case. It is a procedure which to my mind will affect all universities and not just those which happen to have tenure. When I asked a question on this the other day, the noble Baroness, Lady Hooper, said that the staff of the Privy Council Office and the DES saw no difficulty in coping with the trickle of submissions which would come in from the commissioners over a period of three years. It sounded as if the Privy Council Office, which is very tiny, would be operating as little more than a post office and that this time it would in practice fall to the officials of the DES to sit in judgment on the commissioners' findings. But it is what happens next that I find rather puzzling. Clause 175(6) says as regards the findings of the commissioners:
No instrument made in the exercise of the Commissioners' powers … shall have effect unless it has been approved by Her Majesty in Council".
Clause 178 hides behind a marginal note, which states:
Power to make incidental, etc., provisions by Order in Council".
The clause states:
Her Majesty may at any time by Order in Council make such incidental, consequential or supplementary provision as appears to Her necessary".
for the purposes set out.

Clause 178(2) states:
An Order in Council under this section may in particular amend, repeal or revoke … any provision
of—(a) an Act passed or a charter granted … before the passing of this Act".
As the university statutes will in future cover grievances and appeals procedure, the chances are that the provisions of pretty well every university will have to be amended, certainly the Act affecting Royal Holloway and Bedford New College with which I have some concern will have to be amended.

Clause 192(4) concerns a statutory instrument. We now have a statutory instrument appearing on the scene. The clause states:
(4) A statutory instrument containing—(a) an Order in Council made under section 178 of this Act … shall be subject to annulment in pursuance of a resolution of either House of Parliament".
I of course am not used to dealing with Acts of Parliament and I may be quite wrong, but does this very complicated jigsaw mean that in practice every amendment of every statute of every university, whether the statutes are made under charter or under an Act of Parliament, is to be the subject of Orders in Council which can be prayed against? If that is right, would it not be more sensible to say so in terms perhaps on the lines of my amendment rather than let
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the whole structure rest on a clause which according to the marginal note confers a power:
to make incidental, etc., provisions"?
If I am wrong and the jigsaw does not mean this, my amendment speaks for itself as setting out something that ought to be done.

Perhaps it might be wise for me to start by saying what I understand the procedure to be. The commissioners' powers are set out in Clause 175. They:
may make such modifications of the statutes of any qualifying institution as they consider necessary or expedient … No instrument made in the exercise of the Commissioners' powers under this section shall have effect unless it has been approved by Her Majesty in Council".
So in the ordinary case of statutes which are not Acts of Parliament the commissioners' powers may be exercised, and once approved by the Privy Council no further procedure will be required.

If however something further is required—something that requires a fuller exercise than a mere exercise of the commissioners' powers—Clause 178 is intended to deal with that. It states:
(1) Her Majesty may at any time by Order in Council make such incidental, consequential or supplementary provision as appears to Her necessary or expedient—

(a) for the general purposes or any particular purposes of any exercise of the Commissioners' powers under section 175 of this Act; or

(b) in consequence of any exercise of those powers or for the purpose of giving full effect to any such exercise".

That is to say that if something appears to be necessary to be done which is not contained within the powers of the commissioners under Clause 175, it does not mean that it could not happen at all. It means that in that situation where something further is required it may be done by Order in Council. When an Order in Council is carried out and that includes the situation in which an Act of Parliament is itself to be modified, the necessary procedure is that which is set out in Clause 192(4). My understanding of the position is that in the ordinary course the only procedure that would be required is for the Privy Council to give effect to the exercise of the commissioners' powers.

Where something more than a mere exercise of the commissioners' powers is called for falling within Clause 178, that may be done by Order in Council, but an Order in Council is:
subject to annulment in pursuance of a resolution of either House",
as provided in Clause 192(4).

In view of the changes which have been made to the Bill since it was first introduced, does not that mean that in practice nearly every case will come within Clause 178 in that it is not just talking about an Act of Parliament but also about charters?

Clause 178 is only required if something more than an ordinary exercise of the commissioners' powers is required. The commissioners' powers are referred to in Clause 175. That may be sufficient in most cases, but the exercise
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of their powers may throw up some other expedient change which flows from what they have done. In that case the powers under Clause 178 would be exercised and in such a case the parliamentary procedure is open.

I think that the answer to the noble Lord's last question is that in many cases the commissioners' powers would be sufficient to deal with the matter without the need for Her Majesty to go on to exercise powers under the Order in Council. For example, a good number of the institution statutes at least are contained not in the charter but in statutes passed by virtue of powers contained in the charter. In that situation the statutory instrument is not required as regards Clause 175. It would only be required if power to do something more was necessary under Clause 178. I think that that is the correct position. I am taken up with answering the question but I must now go on to deal with the amendment.

I shall take the amendment of the noble Lord, Lord Allen of Abbeydale, first. In the light of what I have sought to explain, the noble Lord's amendment is perhaps not appropriate. As regards getting the commissioners to report to Parliament I do not know what the purpose of that is. The powers that they exercise become effective as changes only when approved by the Privy Council. The matters will become public property very quickly—they are all references to public documents or to the university. I cannot imagine why there should be formal reports to Parliament. The powers are fairly strictly defined.

The powers in Clause 178 are subject to parliamentary control and I should have thought that a report to Parliament in the way proposed in the amendment of the noble Lord, Lord Morton of Shuna, was inappropriate. Perhaps I should also say, just in case anyone thinks I have forgotten, that among the precedents followed by having commissioners are of course the commissioners who were appointed under the University of Scotland Act.

I have never heard Parliament disposed of quite so summarily. We are discussing a group of five people who will change statutes and even Acts of Parliament. It will then report to the Privy Council which is not the most public organisation in the world in its considerations. Nor does it represent every branch of opinion. Those are very important powers. They are powers which the universities and many others are concerned should be exercised strictly within the limits and not exceeded. I should have thought that it is eminently reasonable for Parliament to have some supervisory role in deciding whether or not those powers are being properly exercised. Otherwise, what is the purpose of having a Parliament?

The noble and learned Lord said that in the light of his explanation I am wrong about the charters. He said that my amendment is uncalled for. I take a different view. I think that his explanation has made it more important in that, contrary to my own amateur view,
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there is no routine procedure for Parliament to exercise any control over the changes. My amendment suggesting that they should be laid before Parliament has an even stronger claim for consideration than I had realised.

The powers that Parliament is giving to the commissioners are fairly closely defined. There has to come a stage at which the business stops. The noble Lord complained about the complexity of the procedure and he now seeks—perhaps it is unfair to say that, because it is on a slightly different footing—to add another stage. If the powers are sufficiently clearly defined, as I believe they are, then it is appropriate that the Privy Council should be the body to deal with those matters.

The noble Lord, Lord Morton of Shuna, says that the Privy Council is not the most public body that was ever invented. The fact that it is called the Privy Council would suggest just that. However, it is the body that grants charters and it seems appropriate that it should have a role. It is important that if something is required beyond a mere change of university statute Clause 178 should come into play and parliamentary procedure should be invoked.

The minor matters are left to the Privy Council, which I should have thought was implicit in what was said earlier. It is right that that should be so. It is not correct that nearly every case will require parliamentary scrutiny under the provisions, as the noble Lord first said. I believe that it is right that not every case should demand parliamentary scrutiny. Only where the powers required under Clause 178 are invoked is parliamentary scrutiny necessary. Reporting to Parliament would be an inappropriate stage in that procedure. If there was to be any parliamentary control at all, it would be in the nature of what is provided in Clause 192.

However, there must come an end to supervision or we shall have supervisers supervising supervisers almost ad infinimm. I suggest that the procedure which is set out is a reasonable one for the comparatively subsidiary role which the commissioners will have in adapting what Parliament has laid down in the principle Bill, if it is passed, to the constitutions of individual universities or other institutions affected.

I regret to say that I do not find that satisfactory. We have gone through this Bill, as we have gone through others, with the Government saying that the powers given to do this or that shall be by order, or that without even the necessity of an order the Secretary of State shall make up his mind. It seems to me that the alteration of statutes is important and that Parliament has a different and more important role which should be recognised. I intend to press the amendment.

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The noble Lord said: Amendment No. 277A is grouped with Amendment No. 279ZD, in the name of the noble Baroness, Lady Seear, and the noble Earl, Lord Halsbury, and Amendment No. 279ZE, in the name of the noble Lord, Lord Pender. It is somewhat arbitrary that I speak first because it seems to me that the subsequent amendments are rather more to the point than my own. However, if I briefly say what I think the point is I can then sit down.

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These amendments do what I argued earlier we need to do. They enable the institution to offer—subject to very stringent conditions which can be discussed in detail if the amendments are passed—what I would call a tenure contract. The noble and learned Lord the Lord Chancellor made clear what he thought constituted a tenure contract in this context. That is also what I think a tenure contract is, so we have no difficulty on that issue. The amendment seeks to enable such a contract to be one of the possible contracts that a university or college could offer to its staff. That is my interpretation of the amendments and that is what I seek to draw to the attention of the Committee. I beg to move.

I should like to support the amendment. In our view it is very desirable. I do not want to repeat the arguments that were put forward earlier during the discussion of the question of tenure. However, it should be possible for institutions to offer genuine tenure to people they wish to attract and to hold. That is essential, in our view, if the standards of universities are to be maintained.

The arguments have been rehearsed at considerable length in connection with an earlier amendment. I merely wish to say that I hope the Committee will agree that this is a way of satisfying the Government's desire that universities should not be landed with near universal tenure while at the same time giving those institutions the possibility to recruit and retain the people they really need if the standards of universities in this country are to be maintained.

The purpose of the amendment is to make provision for American-style contracts following the practice of the great American private universities such as Harvard, Massachusetts Institute of Technology, Princeton and Yale. Despite the fact that the US academic labour market is highly competitive those institutions take tenure very seriously indeed. However, tenure can be broken for poor performance or where an entire department or university is to be closed, but for no other reason.

Broadly similar arrangements exist throughout the remainder of the English-speaking world. Those arrangements are designed to protect the individual
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from harassment while at the same time providing the necessary flexibility for restructuring of universities in accordance with changes in demand. This amendment is designed to achieve a similar end.

Staff who move or who are promoted in the United Kingdom in circumstances which involve loss of tenure or who leave tenured positions overseas to accept employment in a UK university could be offered this type of tenure. They could then be dismissed in three situations: first, for good cause; secondly, because the department to which they are attached has to be closed; and, thirdly, because their employing institution is to be closed.

The arrangements in the Bill will inhibit movement. This amendment creates more managerial flexibility. It is also fairer to existing staff in that it reduces the extent of retrospective change in their conditions of employment.

The Earl of Halsbury

In view of the ruling from the Chair that if noble Lords see fit to agree Amendment No. 277A it will not be possible to call Amendments Nos. 277B, 278A or 278B which stand in my name, I think the Committee should know that those amendments were drafted by your Lordships' petitioners. I think that it would be wrong to silence them.

I should like to make one small point. I am well aware of the complexities and difficulties of the tenure problem. It has not existed for all that long in the cast-iron way in which it exists in some universities at present. Indeed, it exists only in some universities and not all. On the other hand, if things go as planned in the Bill, universities will have a rather considerable internal injustice because tenure has an actuarial value. We shall end up with people who have tenure because they have been in post for a while, and others who have been appointed more recently or have been promoted and do not have tenure. There will be a situation—unless the Government do something about adjusting salaries—where people doing the same job are on a different contract or a different salary. That is already giving rise to a good deal of unease.

I do not know whether that is a situation which would justify an approach to the European Court of Human Rights. I know that such cases take a long time. It has been suggested to me by a distinguished lawyer that it could. That is a small point which I wished to add to the debate.

The amendment moved specifically by the noble Lord, Lord Peston, in effect takes away the possibility of having untenured positions. That is really the point we debated in respect of whether Clause 173 should stand part of the Bill which could have been the place for this argument if it was wanted.

The other amendment which has been mentioned in this grouping is the amendment of the noble Lord, Lord Pender. This amendment proposes to produce the situation where, say, a university offers a particular member of the academic staff—

I am sorry to interrupt the noble and learned Lord. I think I am at fault in that, when I was speaking, I thought it was understood that because it was in the grouping I was speaking to the amendment in my name, that is Amendment No. 279ZD. I should have said specifically that I was speaking to that amendment in the same way that the noble Lord, Lord Pender, said he was speaking to his amendment.

I am very grateful to the noble Baroness. I take these two amendments together as both propose in slightly different ways that the universities should be able to offer tenure in respect of particular appointments. The difference between the amendment of the noble Baroness and the noble Earl, Lord Halsbury, and that of the noble Lord, Lord Pender, is that the latter would allow dismissal on the ground of closure either of the department or the whole institution. If such a drastic situation should occur, it seems necessary that something of the kind should be provided.

Perhaps the problem is best put this way. If some new posts are tenured and some are not, this would accentuate the problem to which the noble Lord, Lord Swann, drew attention. Perhaps this is the best place to deal with that point briefly. People who have tenure up to 20th November last year will retain it. The Government announced their proposals and any contract which was entered into after that time is not to have the possibility of tenure attached to it assuming that the Bill remains in its present form. The noble Lord, Lord Swann, points out that that creates a difference between new people and old people. But there is often such a difference.

The terms available may change with the passage of time; this is just a particular example of that. I do not think it would be contemplated as possible to remove tenure from people who held it before the intimation was made that this was proposed. Either one retains the pre-existing situation or one has to have some very elaborate provisions for compensation if one is not to proceed on the basis that some of the new people will not have tenure but the people who were in the post before will. There are certain modifications of that which I need not mention in detail, such as going up the scale. If all one is doing is going up the scale on which one was serving, that is not a new appointment for this purpose and one would continue to have tenure.

As I say, to go along with these amendments would introduce the further possibility of injustice between the different members of the universities' staff. However wise one is, it is not easy to foresee the future. There is always therefore a possibility that the university or institution in question might be faced with a situation in which it was highly desirable to depart from a particular aspect of its activities. This would not necessarily mean the closing down of a department and precisely what was involved might not be clear. But it could become necessary for the sake of financial effectiveness to reduce the university staff. One cannot know that with any degree of confidence a long time in advance. Therefore, I feel unable to accept these amendments.

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I can see the attraction but I believe that the amendments would introduce a still greater sense of injustice than the one to which the noble Lord, Lord Swann, referred. And they would not properly reflect the fact that the universities might have to deal with different situations to those they anticipate at the time of making appointments. I invite the Committee not to accept the amendment which has been moved or the other amendments which have been spoken to.

It is with the greatest trepidation that I challenge the noble and learned Lord the Lord Chancellor on the question of justice. However, it seems to me a little odd, coming from their Front Bench, that the Government should oppose on the grounds of justice the award of tenure which may very well be regarded as a merit award or an incentive to good performance. I had understood that the Government were pressing for that in almost all areas of employment. Why is a particular accolade an advantage not be be given to a highly sought-after academic when in all other fields of work—the Civil Service and elsewhere—the Government are urging awards for people who are showing exceptional merit. It seems to me totally inconsistent.

I do not think many members of the Civil Service are accoladed with tenure; certainly certain offices are not. The question is whether that particular form of accolade is the appropriate one. At the very best the accolade must reflect something about the person up to that point. Tenure looks forward and those with the best possible reputations—

I am sorry to interrupt the noble and learned Lord. The whole point of what we are proposing is that when there are people of exceptional ability who have proved over a period of time, by their research, publications, and distinguished academic work, that they are people whom the university wishes either to attract or retain, what on earth is the difference between that and saying that in other fields of work you give some additional benefit or reward to people who have shown exceptional ability? I cannot see the difference.

I am sorry if the noble Baroness cannot see the distinction between the accolade of tenure which after all is a rather rare accolade and other forms. It seems to me to be a perfectly reasonable distinction. I do not see why in this field new distinctions between the available accolades should be introduced. Once the 20th November has come—

Is the noble and learned Lord suggesting that into academic life would be introduced the general policy in relation to pay: that one should have merit rates, special payments for extremely distinguished people over and above the scale, and improvements in pay rather than improvements in job security? Is that the alternative accolade?

It is certainly a possible alternative accolade. People who do well in academic life sometimes become professors. That is a very large accolade. Occasionally, they become vice-chancellors and principals and so on. There are all sorts of accolades available by which to distinguish people. Why choose this particular one which makes it impossible to take account of changes of circumstance afterwards? I can see that there are distinctions between people in respect of their history on appointment, but not many people can foretell the future completely. Therefore, it is in respect of lack of flexibility in the future that I say tenure is an unsuitable accolade. I hope the Committee will agree with me.

Perhaps I may say to the noble and learned Lord that I find his answer extremely unsatisfactory. He does not seem to grasp what we are talking about. We are discussing the recruitment of academic staff. To a large extent we have accepted the Government's view that the means of recruitment have been excessively rigid. We are suggesting that there be a range of contracts from short-term contracts for short-term purposes, longer term contracts and the tenured contract. That is a range of possibilities I should have thought we could trust the academic institutions to decide upon in order to recruit staff in the appropriate way. That is what we are arguing.

Recruitment of members of staff on this basis corresponds to what the academic institutions want. It also corresponds to the available market price of a person concerned. It is preposterous to suggest that universities will suddenly be free to bid much larger salaries for people. It seems reasonable, as the noble Baroness, Lady Seear, says, on the Government's own view of the way the world works. If the Government will not accept our view, I should like an explanation why some of the greatest universities in the world— private and state universities—offer the precise contract which the noble Lord, Lord Pender, pointed out. I believe that the Committee deserves a reasoned answer from the noble and learned Lord.

We were hoping for elucidation. We were certainly not hoping to divide on this matter. However, I should like to hear again from the noble and learned Lord some argument on what we are talking about.

I regard myself as having addressed the matter about which we are talking. I understand the point. Perhaps the noble Lord will at least agree with that. Whether this is an appropriate form of distinction is the question. Some forms of distinction are appropriate, I agree. I think that I am right in saying that merit awards of pay are in place in at least some universities. I know of one university where I learned something about the possibility of discriminating in pay between different members of the university. And a fairly invidious job it was found to be. However, it is a possible way forward. The advantage is that it is more flexible than accolade or awards of tenure.

Tenure, once awarded, by its very nature is a very long-term factor. That distinguishes it from the
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short-term contract. The effect is to tie the universities' hands for a fairly long time into the future. That is the reason against it that I offer to Members of the Committee. It seems to me to be a reason.

Perhaps I may ask the noble and learned Lord the Lord Chancellor to address the question that has been raised several times this evening; that of attracting people back from the United States. The noble and learned Lord asks: why this accolade? The answer is that people with American appointments in good universities certainly will not come anyway near this country without it.

It is difficult to give evidence about what will happen in the future, which is what the noble Earl is talking about. If the noble Baroness can indicate that, it would be helpful. The best I can do is to suggest that the mere fact that there is no tenure does not mean that no people of academic distinction will wish to take positions in the academic life of this country. I do not believe it for a moment.

Perhaps I may make this brief point. There are already two known cases of distinguished academics who have have been offered chairs in this country and have refused to come because of the implications of this Bill.

Perhaps I may intervene. I am a little worried about certain points that have been made from the Benches opposite. In the first place there has been some exaggeration of the degree to which tenure is applied in American universities. To the best of my knowledge the formula of' the American association of universitiy professors recognises the subordination of tenure to—I think they call it—programmatic exigencies. That is to say, it is not proof against major changes in university policy whether or not induced by financial stringencies.

My other point is this. If it were so serious a blow to the possibility of recruitment, I should have expected the vice-chancellors and principals to have asked us to look at this. In fact there has been no pressure whatever from the vice-chancellors and principals to preserve tenure. They, after all, are as much as anyone concerned with the points that the noble Earl, Lord Russell, has made.

Perhaps I may cursorily answer the noble Lord, Lord Beloff. In the present financial circumstances vice-chancellors are very rarely recruiting anybody. They are living from hand to mouth. The time may come when recruitment may resume.

I do not wish to prolong this discussion. I am deeply disappointed with the answer of the noble and learned Lord. I believe that this is a matter worthy of more serious discussion. We shall return to it on Report. However, at the moment I beg leave to withdraw the amendment.

I have to point out that if Amendment No. 277B is agreed to I cannot call Amendment No. 278.

§The Earl of Halsbury moved Amendment No. 277B:
Page 159, line 36, leave out ("or any delegate of such body").

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The noble Earl said: With the leave of the Committee, I should like to speak also to Amendment No. 279ZA, which Members of the Committee will find at the top of page 8 of the Marshalled List. Noble Lords will find 10 amendments altogether standing in my name and that of the noble Baroness. I ought to explain that she and I were joint practitioners in launching a petition in your Lordships' House at the start of' proceedings on this Bill, signed by no less than some 6,400 academics representing at least 25 per cent. of the total academic population of our universities, a not unnotable percentage for a petition which had been organised at rather short notice.

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When I had laid the petition on the Table, the petitioners asked me what would become of it. I said, "Nothing, unless you can embody your petition, which is in very general terms"—of which I shall remind Members of the Committee in a moment —"in some amendments which I can approve sufficiently to propose them to the Committee."

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These are the first two. The effect of the two amendments taken together is to ensure that decisions about dismissal of academic staff shall continue to be taken by the appropriate body within the institution and where appropriate in accordance with the disciplinary procedures establised within the institution and that dismissal powers shall not be delegated to subordinate officials. That seems to me to be a reasonable proposal by way of an amendment and I submit it for the Committee's jurisdiction.

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I shall not unduly preoccupy the Committee's time because the hour is late. If I may have a fair comment from the noble and learned Lord I shall be content to withdraw the amendment for the time being. I beg to move.

Amendment No. 278 is brigaded with Amendment No. 277B and I wish to speak to it, but at the same time, if I may, I shall also speak to Amendment No. 279 because those two amendments in my name have a certain symmetry. Clause 174(1)(a) concerns redundancy and arranges that dismissal for redundancy should be by a body or a
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delegate of that body. Clause 174(1)(b), which concerns dismissal for good cause, provides that dismissal shall be by an officer or his delegate. In the notes it is suggested that in general the officer who is charged with dismissing for good cause would in general be the vice-chancellor.

The effect of the two amendments, Nos. 278 and 279, would be to give discretion to the commissioners to consider the circumstances as they find them in any individual university and to make a judgment as to whether dismissal for redundancy should be by a body or an officer; and indeed exactly the same for dismissal by good cause, and whether that should be by a body, an officer or their delegates.

This seems to me to achieve merely a sensible flexibility on what the commissioners are charged to do in the light of the circumstances that they find in any particular university. But if the original clauses are based on some principle—perhaps that vice-chancellors will be more effective wielders of the hatchet than committees—from my experience I do not believe that to be necessarily universally true. I have seen both lenient vice-chancellors and lenient committees; I have seen inflexible vice-chancellors and inflexible committees. But I believe it would be worth while extending the charge of the commissioners so that they may use their judgment as to which is the appropriate mechanism in either case in any university.

I shall also speak to Amendment No. 278C in this group. The Bill at present in Clause 174(1)(a) requires the commissioners to exercise their powers with a view to securing that the statutes of each qualifying institution include provisions enabling an appropriate body or any delegate of such a body to dismiss any member of the academic staff by reason of redundancy, whether or not in pursuance of a scheme established for the purpose. That was open to a certain amount of misunderstanding. It was thought that if there was a scheme it could be disregarded. We have concluded as a result of the reconsideration of this that the last words—
whether or not in pursuance of a scheme established for the purpose"—
should be taken out. That is the government amendment to which I am speaking.

The amendment moved by the noble Earl, Lord Halsbury, and the amendment spoken to by the noble Lord, Lord Adrian, on redundancy, go in opposite directions. But that perhaps is to be expected in an informed discussion of this kind. The reason for the arrangement that we have put into the clause on redundancy is that we envisage that the appropriate body in cases of redundancy would be that which was responsible for the management and government of the institution and that such a body would in most cases decide whether a situation existed requiring dismissals for redundancy. In other words, as regards the first question, the redundancy situation would be a matter for decision by the governing body. Decisions on individual redundancy could then he delegated to a smaller body, as appropriate, or to an individual by that body.

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The decision as to whether redundancy could be said to be necessary in an institution is important and needs to be taken collectively and at a high level of management. Such a decision cannot reasonably be left to one individual. It would require a view of the institution's needs and resources as a whole. On the other hand, to remove the power of the body to delegate the detailed provisions to another body or individual would be too restrictive. One would expect the application of the general decision to be for the individual; possibly an individual officer or a small delegated body of members of the university staff.

As regards the second type of situation, where dismissal is on disciplinary grounds, it was thought that that was an individual decision and therefore appropriately taken by an officer in the first instance. The vice-chancellor or principal seemed to be a suitable officer to take such a decision, possibly advised by a small group. One must keep in mind that commissioners must lay down appeal procedures and therefore one must have within the structure proper scope for such procedures. One cannot use up, as it were, every available person in the institution to make the first decision because it would then be very difficult to organise the appeal situation properly.

That is the thinking behind the way in which the clauses are presently drafted. In the light of that explanation I hope that the noble Earl will feel that the distinctions are principled.

The Earl of Halsbury

For my part I thank the noble and learned Lord for that courteous and considered comment on the amendments that I have proposed. Subject to reserving my position for a further stage of the Bill, I beg leave to withdraw the amendment.

§Lord Adrian had given notice of his intention to move Amendment No. 278:
Page 159, line 36, leave out ("any delegate of such a") and insert ("an appropriate officer (or both) or any delegate of such an officer or").

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The noble Lord said: If possible I should like to reply to the noble and learned Lord the Lord Chancellor in respect of the points he has made. I believe that the effect of the amendments is not in any way to alter the possibilities that he has suggested might be the appropriate structure. Rather they are intended to allow the commissioners, if they found that some other arrangement was appropriate for the university, to consider it and then implement it if they thought it necessary and reasonable. The effect of the two amendments is not intended to restrict in any way what exists on the face of the Bill but rather to enlarge the possibilities that the commissioners might consider. Having said that, I shall not move the amendment.

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The noble Earl said: With the leave of the Committee, I should like to speak to Amendments
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Nos. 278A and 278B. They are two further petitioners' amendments, as one might call them. Their purpose is to make clear the fact that fixed-term contracts may be awarded and are to be outside the redundancy provisions of the Bill. The amendments are particularly vital in the scientific field. Academics are likely to accept offers from those institutions able to offer funding for a period covering their research. The absence of such a power will make it impossible to attract overseas researchers who need security. It is also likely to make British universities uncompetitive in the scientific field. I beg to move.

The essential amendment is that to which the noble Earl has spoken and which creates the possibility of fixed-term contracts. It would be fair to say that in the circumstances to which he referred where the research is funded in a particular way, the likelihood of redundancy in respect of that research is very much reduced. The view that the Government have taken, and which I venture to suggest is reasonable, is that one ought to have a situation in which the general provisions are as we have put them: that is, preserving the possibility of redundancy but in many of the cases to which the noble Earl has referred that would be theoretical only. If one introduced fixed-term contracts one would have the same sort of rigidity in respect of changes of circumstances as is occasioned by tenure. There has been a growth in recent years of fixed-term appointments due to the difficulty created by tenure, especially in those universities which confer tenure. I therefore hope that the noble Earl will feel able to withdraw this amendment.

As a non-academic lay-person it seems strange to me to go from a situation of complete tenure in some universities to one where there is no tenure in any. I should have thought that fixed term contracts should be encouraged in order to enable universities to apply their judgment to varying situations. I rather hope that the noble Earl will not withdraw his amendment.

As I understand the noble and learned Lord, he said that when universities had fixed-term contracts that were funded, the possibility of redundancy did not create a problem. I do not think that is quite right because contracts now are often subject to review. They may be subject to review at two years or three years with the normal expectation of those contracts continuing for five years. However, if the university wishes to attract some senior person to head a research unit in order to run that contract, it is normal to give that person an expectation of tenure. Indeed, if one could not give someone of professorial status an expectation of tenure to take up the leadership of a funded unit for, say, a period of five years, one probably could not get anybody of a sufficient calibre to take up that post. Therefore the ability to offer at least heads of research units the possibility of tenure is extemely important. I should have thought that for that reason the Government should accept this amendment.

I do not think I said that the possibility of redundancy was limited altogether. I
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should have thought that in the sort of situation that the noble Lord, Lord McCarthy, is figuring, the institution is secure in the knowledge that a particular research project is to be funded. On that basis, the possibility of the only matter that is between us coming into effect is very, very small indeed. In such a situation I should have thought that the practical effect of paragraph (a) is negligible. Where universities have reason to believe that the funding has been allocated for a particular research project for, say, five years, the possibility that the person who is put there to head the unit will be made redundant before five years is surely sufficiently small to be ignored. Therefore the result is that in practical terms the overall regime produces very much the desired result.

The Earl of Halsbury

I am very grateful for the support I received from my noble friend Lord Hylton and the noble Lord, Lord McCarthy. What I do at this stage depends on how one views these Committee proceedings. I have always thought that the Committee stage of a Bill was rather like a fencing match with button foils. Occasionally the buttons come off and you draw blood; but that is not my intention this evening. Notwithstanding such encouragement as I have had, I would sooner withdraw conditionally with a view to reserving my position at a later stage. I can study at length the contributions made by the noble and learned Lord the Lord Chancellor and other noble Lords, discuss them with, if one likes to call them, my clients, and bring them back at a later stage when I have had a chance to study them in full.

§Lord Adrian had given notice of his intention to move Amendment No. 279:
Page 159, line 40, leave out ("officer, or any delegate of such an officer") and insert ("body or an appropriate officer (or both) or any delegate of such an officer or body").

§
The noble Lord said: I shall not move this amendment with the reservation that I may come back to it at a later stage.

§The Lord Chancellor moved Amendment No. 279ZAA:
Page 159, line 43, after ("cause") insert
—("(ba) provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment;").

§
The noble and learned Lord said: This amendment and Amendment No. 279ZAB are further steps to discharge the pledge the Government have given that they will do all they can to secure academic freedom by giving protection against arbitrary dismissal on unwarranted grounds, which I referred to this
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afternoon. Notwithstanding the vote of the Committee on the matters we were discussing then, I believe that it is still right to put these amendments into the Bill.

§
In the other place the Government undertook to bring forward amendments which would establish disciplinary and grievance procedures for staff. These amendments honour that undertaking in respect of dismissals. In considering how to give effect to this approach we have come to the conclusion that it would also be right to ensure that the test of reasonableness along the lines of the Employment Protection (Consolidation) Act 1978 would apply to dismissals.

§
Ministers are currently discussing the precise formulation of provisions relating to grievance procedures with the Committee of Vice-Chancellors and Principals. Indeed, we had tabled amendments on the grievance procedures but as a result of requests from the vice-chancellor's committee we withdrew them for consideration later.

§
The Government will be proposing the necessary further provisions on Report in the light of these discussions as I said earlier. In the Bill as introduced Clause 174(1) requires the commissioners to exercise their powers with a view to securing that the statutes of each qualifying institution include provisions enabling staff to be dismissed for redundancy and good cause and provisions establishing procedures for hearing and determining appeals against dismissal. These amendments add to those provisions.

§
Amendment No. 279ZAA would make provision establishing disciplinary procedures determined by the commissioners for dealing with any complaints made against any member of staff relating to his employment or appointment. Amendment No. 279ZAB would extend the appeals procedure to include disciplinary matters. It would preclude a person from being dismissed for a reason which cannot in the circumstances, including the size and administrative resources of the institution, reasonably be treated as a sufficient reason for dismissing him. I believe that these provisions give a proper strength to academic freedom by providing additional safeguards which will give academics greater protection against victimisation by their colleagues on account of their beliefs or opinions. I commend these amendments to the Committee and I beg to move Amendment No. 279ZAA.

The amendment proposed is, "Page 159, line 43, after (`cause') insert", the words as printed on the Marshalled List. However, if the next amendment is going to be discussed with this one, I have to point out to the Committee that if Amendment No. 279ZAB, the next one, is agreed to, I cannot call Amendments Nos. 279ZB down to No. 279ZE in the form in which they have been tabled on the Marshalled List. This is because Amendment No. 279ZAB pre-empts Amendments Nos. 279ZB to 279ZE.

However, it would be possible, if the Members of the Committee who have tabled Amendments Nos.
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279ZB to 279ZE so wish, to move those amendments as amendments to Amendment No. 279ZAB. In that event, I would at the appropriate moment put the Question on each of the Amendments Nos. 279ZB to 279ZE in the appropriate form.

I understand that the Members of the Committee concerned have indicated their wish to move their amendments in this form as amendments to Amendment No. 279ZAB. I shall therefore call Amendments Nos. 279ZB to 279ZE as amendments to Amendment No. 279ZAB after the noble and learned Lord the Lord Chancellor has moved Amendment No. 279ZAB and I have put the Question on it for the first time.

I offer my congratulations to the noble Lord the Deputy Chairman of Committees, if that is in order!

I wish to speak to Amendments Nos. 279ZAA and 279ZAB. Amendment No. 279ZAA, unless I am mistaken, has nothing to do with what we thought we were discussing up to now, which is unfair dismissal. It seems to bring into the Bill for the first time a provision that the commissioners are to set up some form of procedure in the university statutes to allow the university, when considering a complaint against a member of the academic staff, to downgrade or to reprimand that member of staff. I do not see what it has to do with Clause 174. The one matter with which it has had nothing to do is dismissal or redundancy. I hope that the noble and learned Lord will be able to explain the purpose of suddenly bringing in what appear to be reprimands and downgrading.

It is my information that this was not asked for by the universities or by the vice-chancellors. It is apparently designed to provide a procedure for reprimand and downgrading. That is the understanding conveyed to me by the Department of Education and Science officials, maybe wrongly. If there is to be a procedure to deal with complaints made against a member of the academic staff, would it not be necessary to cover also complaints by a member of the academic staff? If we are to deal with this at all, it would seem proper to cover the situation where a member of staff complains and wants his complaint dealt with.

I turn to Amendment No. 279ZAB. I understand that the purpose in general is to introduce an element of reasonableness into the situation to attempt to reduce the anxieties expressed on Second Reading that the provision might be used, for example, to get rid of a professor and replace him with a junior lecturer doing the same work at a cheaper rate. The amendment is unsatisfactorily worded. I spent some time endeavouring to understand it. It appears to go round in a circle and to end up where it started.

No provision such as is mentioned in subsection (1)(a) or (b) … which is included in the statutes … by virtue of section 175 … shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances … reasonably be treated as a sufficient reason for dismissing him".
It is very difficult to extract any comprehensible meaning from that. This may be my lack of understanding. I have tried to understand it and I have tried it on several of my noble friends, but I
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cannot get a reasonable meaning from it. I shall read it again:
the reason for his dismissal may … reasonably be treated as a sufficient reason for dismissing him".
It does not seem to add anything and perhaps does not express the intention that the noble and learned Lord wished it to express.

I said earlier that we had put down amendments on grievance procedure which were withdrawn after representations from the vice-chancellors. The grievance procedure relates to complaints by members of the university staff. I explained that that had been put down and withdrawn.

Amendment No. 279BA is a provision for establishing disciplinary procedure for dealing with any complaint made against any member of the academic staff relating to his appointment or employment. Clause 174 refers in particular to dismissals, but the disciplinary procedures would certainly encompass that.

The noble Lord has difficulty in understanding the second amendment. It is a question of reading it properly. No one shall be dismissed unless the reason is a reason which can reasonably be treated as sufficient for dismissing him. In other words, someone cannot be dismissed unless there is a reasonably good reason for doing so. That is all. That seems reasonable.

That sounds perfectly reasonable, but why not say it? Why not put it into the Bill in the reasonable words which the noble and learned Lord so reasonably used, instead of using words the meaning of which many of us have difficulty in following?

Before the noble and learned Lord responds, perhaps I may ask him something which is in the nature of a supplementary question. This deals with the substantive ground for dismissal. As this provision and the whole of the rest of this part of the Bill is not geared into the Employment Protection (Consolidation) Act, in which forum of the many fora in which employment dismissal questions can arise does he think that this protection for the employee could be adduced? In what way would it intermesh with employment law as a whole? At the moment it stands, like the rest of this part of the Bill, as an island in itself.

I sought to explain this point in my speech at Second Reading in answer to a point which the noble Lord, Lord Wedderburn of Charlton, made in his speech at that time. There may be some misunderstanding here. It has to do with the amendments which in due course we shall have moved as amendments to the amendments we are considering now. Before I come to that perhaps I should say in answer to the noble Lord, Lord Morton of Shuna, that the words which I used a moment ago are, read a little short, the words that are in this amendment.

On the point raised by the noble Lord, Lord Wedderburn, the position as I see it is that the
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procedures with which we are dealing here will be used to decide whether the university—to take the university as a paradigm case—has dismissed the person. In other words, they are procedures that are open in order to review the decision to dismiss. They are appeal procedures. The dismissal must be just and fair. There is a procedure to be put in for deciding on appeal whether what has been put forward by the university—the original officer in the good conduct case—was a proper decision. If the appeal is successful, the member of the university staff will remain a member of the staff. If the appeal is not successful, the member will not. If the dismissal takes effect that would not preclude the possibility of a claim in an industrial tribunal.

One has to look at this against the background of tenure. Tenure prevented members of the university staff from being dismissed at all. They were entitled to continue, unless good cause was shown, as members of the university staff. These procedures are designed to replace that and to say that a member of the university staff will not be dismissed except in accordance with the proper procedure laid out in these provisions. Therefore the member of the university staff is protected against losing his job by such procedures.

I am trying to make progress because it may cut out discussing points later on. The question is not about the internal procedures. As the noble and learned Lord said, the internal procedures may be used and then, if the member of staff remains dismissed, he may wish to go elsewhere. I want to engage the noble and learned Lord on the footing that we are both, so to speak, advising this client—outside of this Chamber, of course. What do we say to him? We say to him that he should proceed with his action, if there is a good point to argue.

However, do we say to him, "Yes, you can go to the tribunal and you can rely upon a sufficient reasoned ground"; or is that now behind us? I think that perhaps it is behind us, in regard to the internal procedures. Therefore this ground is only relevant to the internal procedures. If they fail, legally the member of staff who has been dismissed will derive nothing out of the clause at all, either in the High Court or in the industrial tribunal. Is that right?

I understand about the internal procedures, but I am not asking about those. I am asking about the legal position of a claim of someone who is ultimately upheld as dismissed and wants to dispute it because he says that the reason was not sufficient. Where does he go?

That rather depends on what he is suggesting. Let us assume that he is not complaining about the propriety of the internal procedures and that he accepts that he has been effectively dismissed by the university. In that case he has the industrial tribunal open to him and there is nothing in this provision that cuts out the industrial tribunal procedures. He has the right to go to the industrial tribunal.

One would hope and believe that if the internal procedures had worked properly his case would not
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be a strong one, but that might not preclude its being argued. He would have the opportunity to go to the industrial tribunal and argue the matter there. He would be able to argue for reinstatement or for compensation. As I understand it, there is nothing in this provision which cuts out the ordinary procedures if the dismissal is actually effective. I hope that is the explanation which the noble Lord requires.

I should like to take the noble and learned Lord back to the previous amendment; namely, Amendment No. 279AA. Many questions arise in this connection. I should like to know whether the vice-chancellors have seen the amendment because, as I understand it, they are saying that they see no reason for an amendment of this nature, they never asked for it and they do not know where it came from. That would make sense because it is an odd type of provision to find in Clause 174. I remind the Committee that Clause 174 has a procedure for specifying what must go in the statute so that you can be dismissed by reason of redundancy, so that you can be dismissed for good cause. It includes a system of appeals. The system of appeals is one which the individual academic who thinks that he has not been fairly and justly dismissed can use to obtain justice or fairness.

However, we now have another disciplinary procedure and it does not seem to me, on the face of it, that this helps the individual in any way. It helps the vice-chancellor, the professor, the university or anyone who has a complaint to make against the individual. I say that because it specifies a,
provision establishing (disciplinary) procedures determined by the Commissioners",
for dealing with any complaints made against any member of the academic staff.

In other words, it seems to me that here is an additional procedure, not to protect the individual academic against wrongful dismissal—because we already have one—but to facilitate complaints made against him by other members of academic staff or anyone else. Why has this provision been included? Why has it been put in at this late stage? What criteria will be used to decide whether the complaints which are brought against individual academics are in fact sustained? Will they he asked whether they are just or fair, or whether they are compatible with academic' freedom? Further, as the noble and learned Lord thinks those three terms are all synonymous with each other, will they all be involved in this? Why was the procedure put in at this late date when, so far as I can see, no one has asked for it?

I never said that justice, fairness and academic freedom were synonymous.

The procedure is designed to deal with complaints against members of the university staff. It is subject to the provisions of Clause 173, as amended by the Committee this afternoon. Apart from the amendment, Clause 173(2)(b) provides that the commissioners shall have regard to the need to apply the principle of justice and fairness. The procedures
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are subject to the principles of justice and fairness, both of which concepts appear to be appropriate to the procedures.

The other side of the matter relates to the grievance procedure with regard to a member of the staff against another member of staff or against the university. As I said, we withdrew that proposal for further consideration as a result of representations made by the vice-chancellors. There is a certain element of balance in the provision. The point is that if a member of the university staff can complain, for example, that something has been done to him which he thinks should not have been done—someone instanced earlier the possibility of having to lecture at nine o'clock in the morning instead of at a more reasonable hour as an attack upon the person's academic freedom because of his views—he would have to have some way of bringing that complaint against his fellow academic. Whoever it was who arranged that he should lecture at nine o'clock should have the chance to answer the complaint and explain that he was doing it in the best possible interests of the institution and not because he wanted to penalise his colleagues' unpopular views.

I do not mind doing that if the Committee thinks that it would help. This is a reasonable procedure to have in the Bill. If the Committee feels strongly about it, I would wish to go along with the Committee's views. The provision is distinct. We are talking about complaints against members of the university. It would seem reasonable to have a procedure, subject to justice and fairness, by which they could be dealt.

At the moment this provision is by itself and we do not know what is to come with it. It sits outwith other provisions which deal merely with dismissal. It is much more easy to discuss the subject if we see it in the context of the grievance procedure that the noble and learned Lord hopes to introduce.

Is what the Government are offering academics the procedure in lieu of tenure? If they are, it does not look like a very good bargain to me. At the end of the day, the dismissed person has the opportunity to go to an industrial tribunal, which can rarely bring about reinstatement. At the moment such a person receives the kind of payment which would not keep the dismissed academic going for more than about six months at the very most. As an exchange for tenure, it is a very poor deal.

I must be becoming short of the ability to explain. What I said was that these are
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internal procedures which would have the effect of keeping the person in position. That is what is put in instead of tenure. It keeps the person in position, assuming that the internal procedures work in his favour, which is what tenure does. Tenure keeps the person in position. We say that he should not automatically be in position; he should be kept in position unless he can reasonably be put out of position on redundancy or for good cause. That is the bargain. It seems to me a very reasonable bargain. It is quite wrong to equate it with the industrial tribunal; that comes after.

If a person is dismissed, then, in addition to these internal remedies, like every other person who is in employment he has the industrial tribunal to go to. Admittedly the money he gets from the industrial tribunal may be rather less than he wishes, but the important protection he gets here is the protection of the internal procedures which we have proposed in the Bill, modified by these clauses.

The Earl of Halsbury

I hope that the noble and learned Lord will not withdraw his amendments until the Committee has had the opportunity to listen to the amendments to the amendment.

My suggestion was not that both amendments should be withdrawn but only that Amendment No. 279ZAA should be withdrawn until we see the other side of the coin of the grievance procedure. The noble Baroness, Lady Seear, asked her question and I think that as a result the noble and learned Lord did not reply to the noble Lord, Lord Allen of Abbeydale, as to whether it might be better not to move the amendment at this stage until the grievance procedure was available.

I believe that I did answer, but I am always willing to answer again, not for the first time. Having put down the amendment, and Members of the Committee having seen it, I do not feel particularly anxious to withdraw it unless the Committee feels that it would be particularly helpful. But as the noble Earl, Lord Halsbury, said, we have these other amendments to consider as well. I should have thought that no harm would be done by keeping this amendment in and looking at the others, which will be amendments to Amendment No. 279ZAB.

Does the noble and learned Lord feel that Amendment No. 279ZAA might well be taken away? He could come back with the amendments which he promised, in view of the statement today by the Committee of Vice-Chancellors and Principals that the amendment has caused them some concern. It has come as a complete surprise to them and appears to be designed to downgrade and reprimand people without sacking them under the procedure. Universities have not asked for this. Does the noble and learned Lord consider it better that we should look at it in its full context and after the Committee of Vice-Chancellors has been consulted?

I do not see any particular harm in doing that. I certainly intend to bring it back in due course. I may be that it will look better and even be easier to understand in the light of the other provisions of which I think it originally formed part. In that situation I shall not invite the Committee to agree tonight to Amendment
No. 279ZAA.

If the noble and learned Lord the Lord Chancellor will formally move Amendment No. 279ZAB, I shall then call the next amendment as an amendment to it.

§The Lord Chancellor moved Amendment No. 279ZAB:
Page 159, line 48, at end insert ("or who are otherwise disciplined.(1A) No provision such as is mentioned in subsection (1)(a) or (b) above which is included in the statutes of a qualifying institution by virtue of section 175 of this Act shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances (including the size and administrative resources of the institution) reasonably be treated as a sufficient reason for dismissing him.").

§Lord McCarthy moved, as an amendment to the amendment, Amendment No. 279ZB:
Page 159, line 48, at end insert ("including provision for adequate remedies, including reinstatement").

§
The noble Lord said: I am told that I must say that I wish for the new words printed in the Marshalled List to appear after "disciplined". The amendment in my name and the name of the noble Lord, Lord Wedderburn, in simple terms, is to introduce into these procedures an appropriate remedy. The remedy which we suggest should be introduced is:
including provision for adequate remedies, including reinstatement".
We should like to take this with the similar amendment No. 279ZC, put down by the noble Earl, Lord Halsbury and the noble Baroness, Lady Seear:
And for establishing reinstatement as the primary remedy under such procedures".
In effect, we are seeking to invoke the provisions of the Employment Protection (Consolidation) Act 1978 in a more effective way. Our examples are the provisions in Section 69 of the Employment Protection (Consolidation) Act, which states that an industrial tribunal may—I emphasise "may"—make an order for reinstatement or re-engagement.

§
"Reinstatement" means:
that the employer shall treat the complainant in all respects as if he had not been dismissed".
including, if appropriate, back pay, seniority and pension rights. That reinstatement or re-engagement, which is a rather more diluted form of reinstatement, is, of course, re-employment to another suitable employment. But what we have in our amendment is reinstatement.

§
There are, I think, three general arguments which could be made for this. The first is that on the face of the Bill there are no stipulations as to remedies as such. There is in particular nothing really in practice and in actuality about the remedies which are to be expected in cases of dismissal on grounds not of redundancy but of good cause.

§
In cases of grounds of redundancy the Government have said to the appropriate authorities that people who are dismissed on grounds of redundancy will be treated in a comparable way to the way in which people have been treated up to now in cases of voluntary severance. But of course that is not in the statute. We do not know how long that will
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last, but at least the Government have made a reasonable offer in the case of dismissal on grounds of redundancy.

§
Secondly, when we come to the case of an unfair dismissal on grounds of good cause, or rather on grounds of bad cause, we know nothing from the face of the Bill. Therefore I suppose that we must assume that the only remedy in terms of compensation would be the maximum remedy now available under the terms of the Employment Protection (Consolidation) Act. The top level remedy of some £8,000 is, as the noble Baroness, Lady Seear, has said, worth about six months' or less salary to the average academic. Indeed it would not necessarily follow that an academic dismissed in this way and getting compensation in this way would receive anything like £8,000. That is the maximum level. The medium level of compensation given by industrial tribunals is much closer to £2,000.

§
Thirdly, unless academics whom the tribunals have decided have been unfairly dismissed allegedly on grounds of good cause are to be given some extraordinary level of non-statutory compensation which has not been suggested by the Government or anyone else, then the appropriate remedy would appear to be reinstatement.

§
It may be asked, since the tribunals can award reinstatement, why not leave it to them? It may be asked why we need this provision on the face of the Bill. The answer to that is that even in successful cases the tribunals only award reinstatement or re-engagement in some 3 per cent. of instances. For various reasons which we do not necessarily want to go into tonight, reinstatement has not been used by tribunals as the normal primary remedy. The remedy has been some form of compensation.

The Earl of Halsbury

Is the noble Lord speaking to his own amendment or to mine? His own amendment speaks about:
including provision for adequate remedies, including reinstatement".
It mentions reinstatement as an option, whereas my amendment states:
establishing reinstatement as the primary remedy under such procedures.
I am getting a little confused as to who is speaking to which amendment.

That is probably my fault. I understood that these two amendments had been grouped together and that as a result of that one was expected to speak to both of them. I am in fact dealing with my own amendment, but I am very happy with the amendment standing in the name of the noble Earl. In some ways his amendment is stronger than mine. But I shall speak to both if the noble Earl does not mind.

Usually re-employment is not awarded in industrial tribunal cases. It does not appear to be an available remedy but we would suggest that there are very good reasons why in the case of academics it should be regarded as an appropriate remedy. I would even go so far as to say that it should be regarded as the primary remedy.

One of the reasons for this, of course, is that the level of compensation is extremely low. Another argument for this is that many academics will
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undoubtedly find, as has been said by the noble Earl, Lord Russell, that when they are dismissed they are extremely difficult to reabsorb. They have a very special expertise and if the university of their employment says that they cannot be employed they will find it extremely difficult to get re-employed somewhere else. I believe that the noble Earl said that one in 1,000 became re-employed. I am not sure where he got the figure from but that is certainly a very low chance of re-employment. Therefore, we believe that there are many reasons for academics to have on the face of the Bill a statement that the Government regard reinstatement as the normal remedy in those circumstances. I beg to move.

I shall start at the beginning. Clause 174(1)(a) confers power on, in effect, a university to dismiss a member by reason of redundancy. Clause 174(1)(b) empowers it to dismiss a member for good cause. It provides an appeal procedure with the object of ascertaining whether there was either redundancy or good cause. If there is neither redundancy nor good cause, there is no power to dismiss.

Therefore, the idea of reinstatement and so on is absolutely beside the point. The dismissal is annulled because it is an appeal against dismissal. The only power to dismiss is the power to dismiss for redundancy or good cause. If the appeal is successful, there is no proper redundancy and the member has not been properly selected for redundancy. If it is successful, there is no power to dismiss and the person stays in position.

It is not a question of going to an industrial tribunal or receiving compensation on industrial tribunal terms at that stage. As I sought to explain to the noble Baroness, Lady Seear, we are trying to produce a close analogue to the present position without the rigidity of the present tenure system. That means that people cannot be put out of their jobs or appointments in a university unless redundancy exists and is established or unless good cause exists and is established. If neither of those is established on appeal within the internal procedures, then the person is not dismissed.

If the internal procedure produces the result that there was either redundancy or good cause, then in addition to the internal procedures, they having finished and the person having been dismissed because the appeals were unsuccessful, there remains over and above the internal procedures provided by the Bill the statutory procedures of the industrial tribunal. Members have the right to stay unless either of those matters is established. If either of those matters is established, members have the right to have good cause re-examined by the industrial tribunal and redundancy dealt with as well, with the same consequences as are to be found in any other case.

That is the position. It is not a question of that being the primary remedy; it is the remedy in those cases. The dismissal is annulled.

We are trying hard to follow the noble and learned Lord. Perhaps my
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question will help us to make progress. He said that dismissal in breach of what we might call the statutory procedures, as laid down under the commissioners' guidance and under the clause that we are debating, through not having sufficient reason, not having good cause or not being redundant—he used the word "redundancy" in the special meaning of Clause 174 which I shall later refer to as double redundancy—is a nullity. That is quite different from the normal position in English law. There may be a slight difference in Scottish law. Normally in English law the dismissal is not a nullity unless it involves a statutory body, as was the case in the Dock Labour Board cases with which the noble and learned Lord will be familiar.

We are now equating universities with statutory bodies for the purpose of deciding whether they have legal capacity to effect a dismissal outside the procedures. That is the first point which we have clarified. I do not think that that has been disclosed to us either in debates in the other place or previously here. It is a very fundamental and important point. It changes the position of universities, especially those which are chartered bodies and which would have had the capacity to do anything as far as concerns the law up to now. So there is a very big change which is overcoming their legal capacities. The noble and learned Lord is nodding so I believe that we are as one so far.

When one believes that the appeals procedure has got it wrong, the crunch comes when the member of staff says: "The appeals procedure said that there was good cause and that it was double redundancy under Clause 174(4), but I dispute that still. They are keeping me out". When he goes on to the industrial tribunal or possibly the High Court for judicial review since these are statutory bodies with a limited capacity he is not then allowed, excepting judicial review, to rely upon sufficient reason, double redundancy arguments. In the industrial tribunal the 1978 Employment Protection (Consolidation) Act would apply unqualified and unchanged. It would be unchanged by any of these phrases. He can forget sufficient reason; in the tribunal he must rely on the 1978 Act. Is that right? If it is, it is very important.

That is my understanding and it has been since I spoke on Second Reading. I took up this very point in my speech because I thought from what he said in his speech that the noble Lord, Lord Wedderburn, had not grasped it. I think that I was perhaps anticipating these amendments.

The way I understand it, and I hope that I am right, is that what is specified is the power to dismiss. These grounds are required in order to justify exercising that power. The appeal procedure is to test whether or not grounds for exercising the power exist. If the grounds for exercising the power do not exist, then there is no effective dismissal. That is what the procedures are for. Most universities are bodies which have constitutions and the question of whether the constitution has been breached is what the appeal is about.

The Thomas case is a good example. The noble Lord is shaking his head very vigorously not as if in agreement but rather the opposite, which is a pity.
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The Thomas case, in which the visitor's jurisdiction was asserted, is an example of whether the powers of the university—Bradford in that case—had been properly exercised to dismiss the appellant. If the lady had been successful the result would have been that she was still in position and that there was no power to dismiss. That is the way I understand the position. That is why I think that these amendments, with great respect, if anything weaken the position instead of strengthening it.

The noble and learned Lord has converted me to the reason why we put down amendments. We learn things. We learn important things. The noble Lord, Lord Wedderburn, asked him a complicated question. Perhaps I may ask him a simple question. What is the remedy if, despite the fact that the university has no power to dismiss, the individual academic is dismissed anyway? What does he do?

Having listened to the discussion, perhaps we can clarify the position. We are talking about two different things. Surely these amendments do not really apply. Reinstatement is automatic if the internal procedures determine that no dismissal has taken place. The academic is automatically back in post. So how on earth can reinstatement apply to a situation where he has not been—if I can use the word—"deinstated"? That is what the procedures are about.

If these amendments were to some other Bill relevant to industrial tribunals that would be quite different. But we are not talking about, and the Bill is not concerned with, industrial tribunals. It deals with the internal procedures that are to be set up. So if a person is not "deinstated"—in other words sacked, fired, dismissed—then the problem does not arise. It arises only in relation to industrial tribunals, but the Bill is not concerned with industrial tribunals. The amendment is to the internal procedures, which cannot apply.

I ask my noble and learned friend whether I am correct in that assumption.

The answer is that if the complaint is that the internal procedures have not been properly followed the remedy would be judicial review, as the noble Lord, Lord Wedderburn, said. If the person wishes to challenge dismissal, the alternative is not to challenge dismissal but to go to an industrial tribunal on the basis that such dismissal is effective but gives rise to the remedies available in an industrial tribunal; that is, reinstatement, re-engagement or damages, according to the situation.

I shall try to put the point as briefly as possible. If I employ someone and dismiss
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him, the law does not normally force me to take that person back into my employment, but if I have powers which are defined powers to dismiss someone—that is to say, if I am a corporation or a statutory body (a body with charter and laws)—then should I possess the power to dismiss only in certain circumstances and those circumstances do not exist, I cannot lawfully dismiss that person. Therefore if I purport to dismiss that person without proper grounds, the dismissal is only a purported dismissal and the person is entitled to continue in employment.

The simplest example would be in the tenured case. It is certainly my understanding of the position that where there was tenure, unless there were good cause the person could not be put out of a job. That is the implication of the provision. If as an individual I contracted with someone to the effect that he should work for me for ever or up to a certain time and I dismissed that person, there would be a remedy of damages. He could not say that I had no power, as an individual human being has power, to dismiss him.

However, a university of this sort has the powers that its constitution gives it, and the constitution gives to the members of the university the right not to be dismissed except in accordance with the procedures and on grounds laid down in that constitution. Therefore if the university purports to dismiss someone in contravention of those procedures or without those grounds, that purported exercise is without foundation and the person remains employed by the university.

The procedures of which we are speaking are intended to have that effect. That is why I answered the noble Baroness earlier as I did. That is the quid pro quo of taking away tenure. I have to say that they are very strong remedies. Noble Lords who have spoken know a great deal about the Employment Protection Act; indeed, so much about it that they are ready to assume that it is being swallowed entirely into this statute, which of course is something that we are not doing. The remedies there are much weaker: there is reinstatement, re-engagement and damages, although reinstatement is not given so often. A much stronger position is given to the academic. He retains his position in the university unless there is redundancy or good cause is made out in accordance with statutory grounds sustained on appeal.

Before the noble and learned Lord sits down, perhaps I may tell him, first, that he must not chide us for speaking of academics going to tribunals, which is what Ministers in the other place have been saying is often enough the end product of this. We now understand that this would not normally be foreseen as the end product. The normal remedy that the academic would pursue in the test case, which is of course the case where all the procedures do not work properly, is that he should go for judicial review; in other words, to use the words of the late Lord Diplock, to show that the university acted irrationally in that sense of unreasonableness—Wednesbury sense of unreason-ableness—in coming to the conclusion that there was something which could reasonably be treated as a sufficient reason for dismissal.

531
That would be the test that he had to meet; and whereas judicial review has many advantages procedurally, the hurdle that he would have to surmount in judicial review would be higher than that which he would have to leap in the tribunal. Therefore what the noble and learned Lord says has consequences throughout the whole process and a new body of employment law for those who are employed by the statutory bodies would be created for which the major remedy would be judicial review, which would not always be to their advantage. It would seem to me that he might explain this to us further on Report.

I do not think I am capable of explaining it any further than I have done already. The position is quite clear. I do not believe that the ordinary case for judicial review would be on rationality. It would be on some procedural failure. One would expect the merits of the appeal system would be such as to test the merits. There might be an extremely exceptional case, but it would be extremely exceptional. I expect noble Lords wish to proceed.

We must thank the noble and learned Lord for giving us a most interesting lifting of the carpet. A great deal may follow. We must reserve our position if we wish to come back on Report. At the moment we are pleased to beg leave to withdraw the
amendment.

§
[Amendment No. 279ZC, as an amendment to Amendment No. 279ZAB, not moved.]

§The Earl of Halsbury moved, as an amendment to Amendment No. 279ZAB, Amendment No. 279ZD:
Page 159, line 48, at end insert ("and(d) provision enabling an appropriate body to offer any member of the academic staff who fulfils specified criteria of successful achievement in performance of his professional responsibilities, appointment until retirement subject to the provisions of paragaphs (b) and (c) above.").

§
The noble Earl said: The provision of Amendment No. 279ZD is designed to ensure security from dismissal by reason of extraneous opinions by allowing the commissioners in institutions to dismiss academic staff by reason of redundancy as defined in Clause 174(4) or for good cause. Possibly a good deal of that has been already raised and answered by the noble and learned Lord. If he would care to confirm that I should be happy to withdraw the amendment.

I dealt with this earlier, as I did also the amendment of the noble Lord, Lord Pender, which follows immediately. The idea was that it might be possible to give special people tenure. I explained why I thought that that was not a good idea. I have therefore sought to answer this.

(a) there is no requirement for any instrument which would have the effect of modifying the provision to be approved by Her Majesty in Council or to be laid before both Houses of Parliament; and

(b) but for this subsection, there would be no requirement for such an instrument to be approved by the Privy Council;").

§
The noble and learned Lord said: With this amendment I should like to take Amendments Nos. 279ZG, 279AD and 279AE. These are all technical amendments. Some affect matters we discussed earlier in relation to the Privy Council. I tried to take account of these amendments when replying at that time. To start with Amendment No. 279ZF, the effect of Clause 174(2) is that once the commissioners' modifications to the statutes of an institution had been approved by Her Majesty in Council an institution would, unless there are existing controls, need Privy Council approval before instruments having the effect of modifying the provisions in the statutes of a kind mentioned in Clause 174(1) could have effect. Those provisions concern dismissal for redundancy and good cause, and for appeals against dismissal. If the Government's amendment for appeals against dismissal were accepted, it would apply to these also. Some institutions are governed by statutory provisions. We have no wish to interfere with the status quo where existing controls are sufficiently stringent. This amendment ensures that approval by the Privy Council will only be required where existing controls are not adequate.

§
Amendment No. 279ZG is purely a drafting amendment. Amendment No. 279AD is explained thus. Clause 174(5) defines "good cause" as meaning a reason falling within paragraphs (a) or (b) of Section 57(2) of the Employment Protection (Consolidation) Act 1978. Those reasons are in terms of contracts of employment and would not be apt where a member of academic staff had no contract of employment. This amendment ensures that the definition applies to all staff whether they have a contract of employment or not. If they merely held an office, for example, this would apply. I am not sure that there are many of them but there might be. Therefore we have this provision.

§
Amendment No. 279AE follows directly from Amendment No. 279AD. The technical amendments introduce no new provisions but simply clarify what was intended. I beg to move.

§The Lord Chancellor moved Amendment No. 279ZG:
Page 160, line 5, leave out from ("instrument") to ("it") and insert ("which would have the effect of modifying the provision shall have that effect unless").

In calling Amendment No. 279A, I should point out to the Committee that if this amendment is agreed to I cannot call Amendments Nos. 279AA and 279AC.

§Lord Allen of Abbeydale moved Amendment No. 279A:
Page 160, line 12, leave out subsection (4) and insert—("(4) For the purposes of this section redundancy shall have the same meaning as in section 81(2) of the Employment Protection (Consolidation) Act 1978.").

§
The noble Lord said: I am slightly surprised to find myself moving an amendment about redundancy upon which I can claim no expert knowledge when there are a number of experts not very far away from me. As I understand the rather wordy subsection (4) it would enable a member of staff to be dismissed as redundant simply on the grounds of expense; that is to say, he could be dismissed not because there was no longer any need for the work he was doing, but simply to enable precisely the same work to be done by someone lower down the salary scale who would therefore be cheaper. If that is right, it seems to give an odd twist to the ordinary meaning of "redundancy".

§
The noble and learned Lord, speaking on Second Reading, said that people would have to be shown to be genuinely redundant. It comes as a bit of a surprise to me if what we are now discussing is indeed the genuine article.

§
I have read the 1978 Act which provides, in shorthand, that an employee can be dismissed on grounds of redundancy if the employer ceases to carry on the business in which the individual is employed or if the requirement for the employee to carry out work of a particular kind ceases or diminishes. I believe that this means that elsewhere in the workforce someone declared redundant and then immediately replaced in the same job could claim unfair dismissal.

§
Am I right in interpreting this subsection as meaning that the academic could be treated differently? Are there any other employments where this somewhat surprising definition of redundancy applies? Or are academics being picked out for rather special treatment? It seems to me to strain somewhat the commonsense meaning of redundancy. I beg to move.

The Bill contains a definition of redundancy which includes the situation where an institution suffers financial stringency and decides that one way to meet that deficiency would be to have certain work done at a lower level than it is in fact normally done and thus save money for the university. After all, redundancies are all, in a sense, directed to saving money in a situation of financial stringency. The extension here allows for a university, where necessary, on grounds of financial stringency, to employ a junior employee to do a job previously carried out by a more senior person who would thereby become redundant.

So far as the internal procedures are concerned, that would be possible. As I sought to explain earlier, the Employment Protection Act procedures would apply thereafter, and there is no attempt to alter those. Therefore, like everyone else who is subject to
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these provisions, the academic dismissed would have that protection. The reason is that the flexibility that is required, particularly in university situations, would appear to make that proper result.

I have explained already—and it is just as well that one should say this—if a university wishes to substitute a junior member of staff for a more senior member it will have to show that it is acting reasonably in doing so. It will be on that basis, and on that basis alone, that it would be proper for the university to dismiss. I cannot stress enough the fact that academics are not deprived of the protection afforded to others by the Employment Protection (Consolidation) Act. However, the situation of redundancy which enables them to be dismissed before they get to the stage of claiming compensation or payment is more ample in its definition of redundancy than appears in the Employment Protection (Consolidation) Act.

On the other hand, that Act allows dismissal for some other substantial reason. We have not followed that, so if one is to compare the position of the academic with the position of a person covered under the employment protection legislation, one must take the whole of it. The person covered under that legislation can be dismissed not only for good cause in relation to conduct and the like, but for some other substantial reason. We have missed that out but we have made a wider definition of redundancy applicable here in order to cover the particular situation of the university.

Will the noble and learned Lord clarify the position? This is a genuine attempt to seek knowledge. I have always understood that under the Employment Protection (Consolidation) Act redundancy occurred only if the job had disappeared and there was no job left to be filled. I have heard the noble and learned Lord say that the job remains but it is simply being filled at a lower level. To give a precise example, it is that the set of lectures will continue to be given but they will be given by someone more junior and less expensive. However, there has been no change in the job. Is not the whole essence of redundancy that the job has disappeared? As the noble and learned Lord has described it, the job remains. If that is correct, how can it be redundancy?

Perhaps the noble and learned Lord will allow me to add to the question put by the noble Baroness. If someone at a lower level can be appointed to carry out the job, why was someone with higher qualifications appointed in the first place?

If I may say so with the greatest possible respect, that is an excellent question. The university may have a person at a high level. When financial restrictions come along and it looks round, it may ask why on earth it appointed a professor when the job could be done by a junior lecturer. Universities are fallible and they can make mistakes. The point that I made earlier is that the decision must be reasonable. It is not a case of the university arbitrarily saying, "We have a professor who we want to get rid of. Let's put a junior lecturer in his place". It must be a reasonable decision. It must also be against the background of financial stringency, looking round for savings to try to
535
preserve the real life of the university. It sees a professor giving lectures which could be given by a junior lecturer at a much lower price. That is the point.

In the ordinary case, I agree with the noble Baroness that the definition of redundancy given in the Employment Protection (Consolidation) Act is narrower than this. However, I have pointed out that one must take the whole of that Act into consideration. It allows dismissal for some other substantial reason than the specified reasons, but we have not followed that provision. Therefore one must take account of the whole situation including the fact that the employment protection legislation is still available after the dismissal.

One expects that, as he gets more expensive, he will do different work. The point that arises here is a difficult one. I speak with a certain amount of recollection, having been in universities for quite some time. I found that there was a difference between a lecturer and a professor and a lecturer and a recently appointed junior lecturer. The junior lecturer does not have the same job as the professor. The noble Earl shakes his head but this has certainly been my experience. I have listened to professors and to junior lecturers. I must say, not without exception, that I would have rather listened to the professors. As the noble Earl says, a junior lecturer gets older; he goes up the scales and he becomes a professor. The reason for his increased status is that he is doing a different job.

However, if the university discovers that it has made a mistake and that he is doing something that the junior lecturer should do and the university is in a position of financial stringency, surely it is reasonable that it should be able to take the proper steps to remedy the situation rather than cut some more vital aspect of the university's activities.

In the interests of one word having one meaning only, would it not be better to employ in this part of the Bill some such term as "redeployment of staff" rather than "redundancy"? I offer that as a suggestion.

I am terribly worried once again. I am probably the only person left in the Chamber at this hour of the night who has been both a junior lecturer and a professor and who has run what became a university. I can find no similarity in my experience of over 50 years in universities with what the noble and learned Lord has described. When first appointed to the great University of Manchester as an assistant lecturer in 1939 I was asked to take three courses of lectures. One of those was on a special subject. And a special subject lecture could have been given by a professor.

I am sure that I was not as good as a professor but it never occurred to anyone at the time to distinguish,
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over quite a large area of the department's work, what was appropriate for a professor. One had a number of people in different grades and the work was distributed between them. It may well be true that there are in other subjects occasions to which the noble and learned Lord has drawn our attention. But it seems to me that what he has said so far strikes at the whole heart of the academic community to a much greater extent than the other matters we have been discussing today.

I implore the noble and learned Lord to take this away and ask the vice-chancellors who have much greater experience than myself of running universities or university institutions, whether they want this power and whether there is not anything they would rather do than throw into the workings of a university department discrimination of this kind. I think that this is both impractical and, if I may say so, immoral to the highest degree.

In calling this amendment, I should point out to the Committee that if it is agreed to I cannot call Amendments Nos. 279AB or 279AC.

The Earl of Halsbury

Before moving this amendment, perhaps I may ask the noble and learned Lord the Lord Chancellor whether his comments on it are already included in his comments on the amendment of the noble Lord, Lord Allen of Abbeydale. If so, I shall not move it in order to save the time of the Committee. If he can confirm that if I look through Hansard tomorrow I shall see the comments he made, I would not want to ask him to repeat them.

Yes. It was grouped with that amendment. There are other considerations, but as I have taken the other amendment back I shall also take this amendment into account.

§The Earl of Halsbury moved Amendment No. 279AA:
Page 160, line 19, leave out from ("work") to end of line 25 and insert—("( ) Where the reason or the principle reason for a dismissal was that the member of staff was redundant within the meaning of subsection 4 but it is shown that the circumstances constituting the redundancy applied equally to one or more other members of staff employed by the same institution who held a position similar to that held by him but who have not been dismissed, the dismissal shall he regarded as unfair if—

(a) he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his case; or

(b) he was selected for dismissal by reason of his personal opinions or some other reason not related wholly or mainly to the activity in question.").

I have covered most of the matters arising from this amendment. As I have taken back the amendment of the noble Lord, Lord Allen of Abbeydale, for further consideration, perhaps I may also take back this amendment.

§Lord Wedderburn of Charlton had given notice of his intention to move Amendment No. 279AB:
Page 160, line 21, leave Out ("or members of staff of a particular kind").

§
The noble Lord said: If it is agreeable to the Committee, I shall not move this amendment subject to saying a few words. The noble and learned Lord has kindly agreed to take away the definition of redundancy, as it is known in this Bill. When he reconsiders the matter, will he also take account on his agenda of the inter-relationship of three matters which it was our intention to raise under this amendment?

§
The first is the double redundancy definition in the Bill, as we call it; the second is the normal definition of redundancy and its effects in relation to redundancy payments and also in relation to unfair dismissal law; the third, and most important, is the relationship in employment law of the area of justification of the fairness of dismissals in the tribunals of which the noble and learned Lord said that there would theoretically be availability for such a person; the relationship between the reliance of the defendant institution employers upon some other substantial reason and its powers as expressed in the Bill—the most obvious one being that the university might use the wide double redundancy formula in order to substantiate some other substantial reason. Those are only the headings of the agenda which I otherwise had, and in view of the kindness of the noble and learned Lord in saying that he will bring this matter back on Report I shall not move this amendment.

§The Lord Chancellor moved Amendment No. 279AD:
Page 160, line 25, at end insert—("(4A) For the purposes of this section "good cause", in relation to a member of the academic staff of a qualifying institution, means a reason which is related to his conduct or to his capability or qualifications for performing work of the kind which he was appointed or employed to do; and in this subsection—

(a) "capability", in relation to such a member, means capability assessed by reference to skill, aptitude or any other physical or mental quality; and

(b) "qualification", in relation to such a member, means any degree, diploma or other academic, technical or professional qualification relevant to the office or position held by him.").

§
The noble and learned Lord said: I have explained the reason for this amendment. I beg to move.

§Lord Morton of Shuna moved Amendment No. 279C:
Page 160, line 43, at end insert—("( ) Nothing contained in this Part of this Act shall prejudice the rights of the Church of Scotland as set out in the Universities (Scotland) Acts of 1932 and 1966, and it shall be the duty of the Commissioners to secure that the statutes of each qualifying institution shall include in relation to any ordinance which relates to the purposes mentioned in section 2 of the 1932 Act the same provisions for consultation and for consent, mutatis mutandis, as are set out in the Acts of 1932 and 1966.").

§
The noble Lord said: It seems odd to be speaking from the temporal Benches on a matter which concerns the Church of Scotland. The situation is that the Church of Scotland has always had, with the four older Scottish universities, a considerable relationship which predates the Reformation, was restated with the Reformation in the First Book of Discipline, and now exists to the extent that appointments to certain chairs in the faculty of divinity in the four universities are made by the universities with the consent of the General Assembly of the Church of Scotland and are controlled by the Universities (Scotland) Acts 1932 and 1966.

§
The purpose of the amendment is to enable that procedure to continue to the extent that this must be taken into account in any dealings on whether chairs should be redundant or the Churches should retain the right to be consulted.

§
Amendment No. 180A is in more general terms for any proposed Order in Council to be communicated to any university or other institution directly affected for comment. One would hope that that at least would happen anyway. There would then be a statutory provision for the Church of Scotland to make comments to the commissioners before the Order in Council is pronounced. I beg to move.

To deal first with Amendment No. 180A, I intend to accept in principle that something along these lines may be necessary. Precisely what is not absolutely clear, but I am prepared to undertake without any qualification that the Church of Scotland would be informed about changes connected with the chairs in which it has an interest.

The Act of 1932, which is the main one, is not affected by this Bill in regard to repeal. The right course would be to leave this to the commissioners. As I explained earlier, one reason for having the commissioners is that to fit the principles of the Bill into the constitution of the various institutions requires detailed work and adjustment. The interests of the Church of Scotland, which I wish to see very well looked after, will be taken care of in that procedure. Given that the interests of the Church of Scotland will be properly taken into account, I hope that the noble Lord may be satisfied.

I am obliged to the noble and learned Lord the Lord Chancellor. I shall take advice on whether it is necessary to come back on the matter. I am glad that the 1932 Act is to remain unaffected.

The necessity for consultation with the Church of Scotland does not appear on the Bill, which worries me a little. However, the attitude of the noble and learned Lord to Amendment No. 180A is helpful. I beg leave to withdraw the amendment.

My chief desire is for some information. Perhaps I may raise the matter of Amendment No. 279B, which fell because the words to which it related were deleted. This is a matter of the interpretation of "good cause" for dismissal. It arises from the discussions with members of the Committee of Vice-Chancellors and Principals. The case law that has been found does not seem to establish clearly that opinions are not by themselves good ground for dismissal. One wonders whether there might be any scope for further discussion or further clarification on this matter.

I indicated this afternoon in response to the amendments moved by the noble Lord, Lord Jenkins of Hillhead, that I proposed to do this very thing as in my belief this was the area in which academic freedom was most important and in which amendments were likely to be effective. The Committee did not feel able to accept that in full satisfaction of what was going on this afternoon.

I intend to continue with these consultations. I shall not be deflected from them by the fact that the amendment was carried this afternoon. It is in this area that the real thrust comes. The noble Earl's point will continue to feature in our discussions and I hope that we may have something of use on this matter at Report stage.

In calling Amendment No. 279CB, I should point out that if this amendment is agreed to, I cannot call Amendments Nos. 279D or 279DA.

§The Earl of Halsbury moved Amendment No. 279CB:
Page 160, line 50, leave out from ("apply") to end of line 7 on page 161 and insert ("to a person appointed to tenure or enjoying tenure before the date on which these modifications are made.").

§
The noble Earl said: The object of this brief amendment is to remove the retroactive effect of removal of tenure from people who received it last year. As a rule, Parliament does not like retroactive legislation. I think that the Committee should have
540
an opportunity to express an opinion on this matter. I beg to move.

As a non-expert in the matter, I too have been very puzzled as to why considerations of this kind are not dated from the day that the Bill will become an Act. It has puzzled many people in the academic world, as the noble Earl said. Without wishing to delay the Committee excessively, one would like an explanation of why the day of the introduction becomes the effective date, which, to use one of our favourite words in these debates, is a little unjust in some cases. One is looking for an explanation.

I should like to speak to Amendment No. 279D, which is grouped with this amendment and is designed to achieve a similar effect. It is also concerned with the retroactive provision but seeks to come at the matter from a slightly different angle.

The effect of the amendment would be to postpone the operation of the changes until university statutes are reviewed and until it is possible to indicate to somebody who is being offered a new appointment on precisely what terms and conditions such an appointment would be taken. That, as far as I can understand, is in line with normal commercial practice and I should have hoped in line with basic principles of fair play.

I understand that we are dealing with Amendment No. 279CB. As I understand it, the amendment of the noble Earl, Lord Halsbury, would take out one category which the Government say they want to include in the coverage of the Bill. The Government say that anyone who was appointed to tenure before the publication of the Bill will be excluded but that anybody who is promoted, although he was appointed before the date of the publication of the Bill, will be affected by this provision. The effect of the noble Earl's amendment is to say that even if he is promoted he is still excluded from this provision.

I can understand why the Government may wish to resist that amendment. The problem arises if Amendment No. 279DA in the name of the noble Baroness, Lady Hooper, is moved and is successful. A subsequent amendment, Amendment No. 279EA, which I wish to move, seeks to leave out lines 9 to 12. Its aim is to make clear the Government's position, which I take to be very unclear.

I want to ask the Government whether, either at this point or subsequently when they come to debate their own amendment, Amendment No. 279DA, they are saying—the situation would I admit be changed by the noble Earl's amendment—that the Bill is not intended to cover anyone who was appointed before its publication or anyone not promoted, even if there have been increases in their increments or pay as a result of annual awards. It is by no means clear on the face of the Bill, nor is it clear as a result of Amendment No. 279DA that that is the Government's position.

I shall deal first with the general point. The Government's general intentions on the matter have been discussed for some time. Once the proposals were intimated, it was thought right that that should be the cut-off date. There are
541
various possible cut-off dates—one is when the Bill is enacted or commenced and another is the type of date that the noble Earl, Lord Russell, mentioned; that is, the time when the arrangements take effect in a particular university.

However, the Government thought it fair that the same date should apply to everyone and that it should be clearly intimated. Further, the provision does not come into effect at all unless the Bill becomes law. Therefore there is no question of there being anything unconstitutional about the matter. The Government are not trying to jump the gun, so to speak. It is that this will be the effect if the Bill ultimately becomes law and is passed by Parliament.

As I said, 20th November, the date of publication, struck us as being a good and fair date on which to make the change. In a way the sooner it is done the better. People will then know where they are people who are already in position at that date will know that their tenure is secure and new people negotiating after that date will know that they will not have tenure if the Bill is passed. Of course they will make their own judgment on that probability.

The Government took the view that this should be the rule, but they also took the view that appointment to new positions should not attract tenure if that appointment took place on or after 20th November. The idea behind Amendment No. 279DA that the noble Lord, Lord McCarthy, referred to is to try to clarify exactly what constitutes a new position in this respect. The details are fully set out in the amendment and I do not think that I can illuminate the matter by discussing them further, unless someone has a special point to make on them. The result is to try to define, as closely as possible what would not amount to a promotion, although it might lead to a larger salary.

May I draw the noble and learned Lord's attention to my problem? It is quite clear. Mr. Jackson in another place said that he wished under the existing provisions of the Bill—that is, before this amendment—to describe:
The circumstances that we regard as promotion".
He said that because promotion is to be included in the Bill and non-promotion is not to be written into it. He went on to say that the problem on the face of it is that the Bill,
does not mention promotion specifically".—[Official Report, Commons Standing Committee J, 25/2/88; col. 1793.]
In particular, and more seriously as I see it, it fails to specify the type of increases or changes in title which academics in posts can obtain without suffering loss of tenure. Subsequently, however, members of the Government clearly said that they did not wish that provision to affect the tenure of those who will receive annual incremental increases or what they call titular improvements in their position. I cannot find that provision—that is my difficulty—on the face of the Bill or in the amendment. Perhaps I may draw the noble and learned Lord's attention to paragraph (b)(i) where the problem which appears on the face of the Bill repeats itself. The Committee will notice that the paragraph states,
his rate of remuneration is increased to a rate which exceeds the highest point on his former pay scale at the date on which the increase takes effect".
When a pay scale is increased because a 3 per cent., 4 per cent. or 5 per cent. annual increment is
542
negotiated by the union, it is normal to refer to the new pay scales. The new pay scales come out and everyone receives a further 4 per cent. If all the people with tenure receive a further 4 per cent., could it not be argued under the terms of paragraph (b)(i) that the
rate of remuneration is increased to a rate which exceeds the highest point on his former pay scale at the date on which the increase takes effect"?
The Government have therefore inadvertently destroyed the tenure of such persons.

The explanation is that the position is changed in such a way that the person receives a new rate of remuneration. That is as I understand the position. In other words "his former pay scale" relates to the pay scale that he had in the appointment he held immediately before the change.

If the only change is a change within the scales that were available to him—for example, let us suppose that there is a pay scale which has three different points, and that there is a lecturer on scale one who has done well (he will not receive tenure) who is put up to scale two (a higher scale)—that would not be a promotion for the purposes of the amendment. If his position were changed in such a way that he was given a salary which was higher than the highest grade to which he could be moved up, there would be a change. That is the idea of the provision, as I understand it, put in as simple words as I can.

I shall give a simple example because I am worried about much simpler things. Let us take figures out of the air. There is a lecturer's scale with a maximum of £20,000; a reader's scale with a maximum of £25,000; and a professor's scale with a maximum of £30,000. They are all existing scales. They all receive a 10 per cent. Increase. They are all new scales and tenure is lost.

The distinction is that of movement within a scale and movement of the scale itself. I am sure that the noble and learned Lord will be able to clarify that point for us in due course. I do not wish to delay the Committee, but I want to return to my previous point which was that introduced by the noble Earl.

During the course of the year there has been the equivalent of planning blight because of the 20th November date. Anomalies are capable of occurring. It is almost 100 per cent. certain that the Bill will become law before the start of the new academic year. The point to which 20th November refers would be better applied to 1st October, 1988, when I guess that the Bill will be law, despite the activities of this side of the Chamber. It seems to me quite reasonable to suggest that the date of 20th November—and the Government may have had good reasons at the time for introducing it—should not apply any more as we come to the end of the Bill. I am bound to say that I should be a little happier if when the Bill passes the noble and learned Lord would consider 1st October or the equivalent. I think that would get rid of a few anomalies that we heard of. That is the point I was trying to make, in a great desire to be constructive and helpful.

The noble and learned Lord kindly said that he would look at this again. Perhaps I may ask him to put on his agenda a simple point based on the example of my noble friend, Lord McCarthy. I think that on the explanation that he gave the Committee—this is rather important for a large number of people—it would mean loss of tenure. I take the case of a lecturer who is on the top of the scale at £20,000—the figure of my noble friend. Then there is a 5 per cent. pay increase and he gets more. From what I understood the noble and learned Lord to say, that means loss of tenure, even on his interpretation. So perhaps the noble and learned Lord could put that on his agenda.

The Earl of Halsbury

On the basis of the assurance given by the noble and learned Lord, I beg leave to withdraw the amendment standing in my name.

Amendment, by leave, withdrawn.

§Earl Russell had given notice of his intention to move Amendment No. 279D.

Page 161, line 2, leave out ("20th November 1987") and insert ("the relevant instrument shall have been approved by Her Majesty in Council").

§
The noble Earl said: Before taking a decision to move this amendment, may I ask for an answer to my question? It was: is it reasonable to expect someone to accept an appointment when we cannot tell him what the terms and conditions of that appointment are?

It is often possible to make a bargain subject to adjustment of certain things later. The point that arises here is that 20th November has been clearly stated as the date at which tenure would be stopped. People have taken decisions, I have no doubt, in the light of that. While I see the force of what has been said, it is always possible to take account, in discussion and in deciding what to do, of the probability of action that is to happen. As the noble Lord, Lord Peston, said, people might have reached the conclusion that it was quite likely that this legislation would ultimately reach the statute book with 20th November in it.

As regards the amendments, they are in accordance with the provisions of the statute and limited in that way. So, although I agree that there are certain adjustments to be made, the essence of the changes is foreshadowed in the legislation.

I cannot really regard that as a satisfactory reply. I take the point that people knew that the Bill was likely to become law. What I think most of us do not know and did not know is exactly what sort of contracts are likely to be on offer when the Bill is law. Tonight, noble Lords who are experts in labour laws have discovered that in some respects this Bill means something very different from what was said. I think that, until they know what sort of contracts can be available for them, people are being asked to buy a pig in a poke. I do not think that that is fair commercial practice. I beg to move.

In calling Amendment No. 279DA I must inform the Committee that if that amendment is agreed to I cannot call Amendments Nos. 279E or 279EA.

§The Lord Chancellor moved Amendment No. 279DA:
Page 161, line 3, leave out from beginning to end of line 18 and insert—("(b) immediately before that date he is paid on a scale which provides for a maximum rate of remuneration (his former pay scale) and on or after that date the terms of his appointment, or of his contract of employment, are varied (whether with effect before or after that date) so that—

(i) his rate of remuneration is increased to a rate which exceeds the highest point on his former pay scale at the date on which the increase takes effect; or

(ii) he is paid on another scale on which the highest point at the date the variation takes effect exceeds the highest point on his former pay scale at that date; or

(iii) he is paid on a basis which does not provide for a maximum rate of remuneration.

(2A) For the purposes of subsection (2) above references, in relation to a pay scale, to the highest point on the scale at any date are references to the maximum rate of remuneration payable at that date in accordance with the scale whether on a regular or discretionary basis.(2B) Modifications such as are mentioned in subsection (2) above shall not apply in relation to a person who held an office or position at the institution in question immediately before 20th November 1987 by reason only of the fact that he is subsequently appointed to, or employed in—545

(a) a different office or position at the institution instead of his former office or position if the terms of his appointment or of his contract of employment which relate to remuneration are the same as those of his former appointment or contract of employment; or

(b) an additional office or position at the institution which carries no remuneration.").

§
The noble and learned Lord said: I referred to this amendment in answer to a question from the noble and learned Lord, Lord McCarthy. It is intended to clarify in some detail the provisions about what amounts to a promotion or, in effect, a new appointment for the purposes of tenure. I beg to move.

Yes, unless there was simply a change of name, which is possible. However, the amendment makes it clear that if the salary change is of a kind which is described in paragraph (b), then the situation will be covered by the amendment. The mere fact that a person is called a senior lecturer does not necessarily mean that the salary is improved. If the lecturer and senior lecturer grades are quite different, the promotion to the senior lecturer grade would in the normal case mean that tenure was lost.

§The Lord Chancellor moved Amendment No. 279ED:
Page 162, line 8, at end insert—("(6) Until the coming into force of section 115 of this Act subsection (2)(d) above shall have effect as if for the reference to the Universities Funding Council there were substituted a reference to the University Grants Committee.").

§
The noble and learned Lord said: Clause 176 requires the commissioners to send a copy of their proposed modifications to, among others, the Universities Funding Council. They must take into account the representations made by the UFC and others before submitting the modifications for approval to Her Majesty in Council.

§
The effect of this amendment is to require the commissioners to send their proposed modifications
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to the University Grants Committee until such time as the UFC is set up under the provisions of Clause 115 of the Bill. I beg to move.

§The Lord Chancellor moved Amendment No. 279G:
Page 162, line 10, after ("dispute") insert ("relating to a member of the academic staff").

§
The noble and learned Lord said: With this amendment I shall also speak to Amendments Nos. 279H, 280ZA and 280ZB. Amendment No. 279G is a purely drafting amendment. The effect of Amendment No. 279H would be to remove the jurisdiction of the visitor in all matters concerning the appointment or employment, including discipline, of a member of academic staff. That would be in addition to disputes concerning dismissal which is already provided for. In the case of Amendment No. 280ZA the use of the word "termination" rather than "dismissal" renders line 21 redundant. Amendment No. 280ZB is a drafting amendment. I beg to move.

Perhaps I may intervene very briefly. I rather regret that the noble and learned Lord the Lord Chancellor has spoken to Amendment No. 279H. I speak ex-officio as Bishop of Winchester, visitor of five Oxford colleges. Three of them were founded by my predecessors in office, two of them by lay people who conferred the visitorial powers on the Bishops of Winchester.

We see the role of the visitor very much as a guardian and guarantor of the founder's intention. Oxford colleges, and their counterparts in Cambridge, are very much educational trusts. They have a particular ethos of their own. The visitor's function is twofold. One function is to hold visitations. That has not been initiated by a Bishop of Winchester for over 300 years hut in the last century various colleges invited Bishops of Winchester to hold such a visitation, particularly at times of college reform. The other function a bishop has as visitor is to hold appeals. That has proved a satisfactory method in the past because it is quick to operate, inexpensive and has proved hitherto fairly uncontroversial. It is a kind of service which the visitor is able to offer the college.

In the legislation before the Committee the Bill removes the powers of the visitor in regard to cases of dismissal. I consulted the colleges of which I am a visitor. Many of the colleges regretted the fact that the visitor had no particular role. They did not seek an exclusive role for the visitor in dismissal cases but they felt that that option and service should be available to a member of staff if he or she so wished it.

The effect of Amendment No. 279H proposed by the noble and learned Lord the Lord Chancellor is to remove the visitor's jurisdiction not only in matters of dismissals but also in matters of disciplinary proceedings. I would not want to say that there
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should be an exclusive right for the visitor to act in that way but I think that there is a case for that facility being available to a member of staff who so wishes. I am fortified in that belief by the heads of colleges whom I have consulted.

I therefore rather regret that the amendment has been proposed by the noble and learned Lord.

I should like to support the right reverend Prelates. We also think that this is unnecessary. I understand that the CVCP has been meeting the noble and learned Lord and that discussions are still going on on this subject. Is it not therefore somewhat premature to introduce the amendment at this moment?

Speaking as a member of a Cambridge college whose visitor is I believe sitting on the Front Bench opposite I would very much regret it if the jurisdiction of the visitor was limited to exclude matters other than dismissal. I accept the restriction of the exclusive jurisdiction of the visitor but I should be sorry if the amendment—and I confess I was unaware that it had that effect—removed the jurisdiction of the visitor from matters of internal discipline in the college.

As the noble Lord, Lord Adrian, said, there are a number of important colleges in respect of which the Lord Chancellor is the visitor, and in a personal way I am sorry that there should be any diminution of those relationships. On the other hand, one probably has to take a decision in a broad way and then apply it fairly generally. This view was taken in consequence and also because of the widening of the matters referred to in this Bill.

In view of the way that the matter has been put by the right reverend Prelate who first raised the issue, I should perhaps just mention that it is perfectly possible for, say, a college and a member of that college who wish to have a dispute decided by the bishop to agree to do so. Arbitration is always possible. In a case in which that is jointly wished, that would be possible. The difficulty is that sometimes the jurisdiction of the visitor is not wanted by one side or the other. It is to cope with that situation in particular that this amendment has been moved.

Notwithstanding the doubts that have been expressed, I hope that the Committee will feel able to accept the amendment. I shall of course convey to my right honourable friend the concerns that have been expressed tonight on this matter.

Do I gather that the noble and learned Lord will not convey to his right honourable friend that there have been misgivings about this matter and perhaps wait until Report stage to bring forward this amendment again after further discussion?

I thought that I ought to move the amendment and ask the Committee to approve it and tell my right honourable friend about
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the doubts that have been expressed. I should want him to consider them. However, I think it right to move the amendment in view of the reasons that I have given.

§The Lord Chancellor moved Amendment No. 279H:
Page 162, line 13, leave out from ("concerns") to end of line 15 and insert ("his appointment or employment or the termination of his appointment or employment").

§The Lord Chancellor moved Amendment No. 280ZB:
Page 162, line 24, leave out ("subsection (1)(c) of that section") and insert ("section 174(1)(c) of this Act; and the reference to a member of the academic staff includes a reference to a person who is treated as such a member for the purposes of that section.").

§
There shall be a body of Commissioners known as the Polytechnic and College Commissioners who shall, in relation to institutions receiving funds from the Polytechnic and College Funding Council, possess the same powers and exercise the same functions as are specified in respect of the University Commissioners by sections 173 to 178 of this Act.").

§
The noble Earl said: In moving this amendment I have come to the last of what I call the petitioners' amendments. I think that the Committee will agree that the petitioners' amendments, as selected and edited by myself, have led to some quite lively debates in which a number of noble Lords have participated and made very relevant observations and in which the Government on more than one occasion have offered to reconsider the matter.

§
I hope that, since such petitions are rather rare in this Chamber, the way that I have treated this one in particular may act as a model for the serious consideration of others in the future. This amendment, which is the last of the 10 amendments, seeks to set up a body of commissioners in parallel with the university commissioners to look after the polytechnics and colleges.

§
At present the staff of polytechnics and colleges are less well protected from dismissal by reason of their personal or political opinions than those who work in the university sector. Cases of unfair dismissal are not unknown. Therefore it seems appropriate to take this opportunity to extend to all who work in the field of
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higher education protection in respect of their fundamental right to teach and research freely. I beg to move.

It is somewhat gratifying to the Government to find that there is so much enthusiasm for the procedures in relation to tenure that they have proposed for the universities that the noble Earl and the noble Baroness wish them to be extended to polytechnics and those other institutions which receive funds from the colleges funding council.

Notwithstanding that encouragement, it may not be necessary to make this provision because, generally speaking, the staff in such institutions do not have tenure in the form enjoyed by staff at some universitites which it has been decided to abolish. There may be general declarations of intent concerning redundancies but I am not aware of such agreements being incorporated in the contracts of employment of such staff.

Moreover, such institutions would fall within the scope of Clause 185, which prevents any tenure being provided hereafter. What is more, the articles of such institutions incorporate procedures for dismissal for good cause and for appeals which have to be approved by the Secretary of State. Clauses 173 to 179 were designed specifically to meet the particular circumstances of the university sector, and such arrangements are inappropriate and unnecessary to secure these objectives in another sector of higher education which has quite different arrangements.

With that explanation, I hope that the noble Earl will consider withdrawing his amendment.

Perhaps I may use this peg on which to hang one thought which has concerned me for some time during today's debate. When we were discussing academic freedom we discussed it with respect to the universities. Those of us who believe in such freedom I assume all of us do—would assume that it would apply to the polytechnics as well. I do not know how in due course the Government will react to the amendment which was passed this afternoon, but whatever its practical consequences are I hope they will extend to the polytechnics because academic freedom is as important there as, here. I do not think that they should feel neglected. I take this opportunity to make that point.

The Earl of Halsbury

It being the hour that it is, I shall not divide the Committee on this matter. I accept the assurances of the noble and learned Lord, while reserving my position to bring the matter back again at Report stage if necessary. I beg leave to withdraw the amendment.

§
The noble Baroness said: The purpose of this amendment is to remove the Government's new grant-making powers in Clause 183. Without any prior indication, the Government proposed at Report stage in another place four new clauses on grants. They are to be found in the Bill as Clauses 180 to 183. There was no debate on those new clauses at Report stage.

§
However, as they require a money order to be made there was a 45-minute debate the evening before the Report stage began. Mrs Rumbold replied on behalf of the Government and gave satisfactory explanations as to the purposes of Clauses 180 to 182. Unfortunately the guillotine came down while she was speaking to Clause 183. We wish to hear what she would have said if that guillotine had not fallen.

§
In the Official Report, at col. 168, on 21st March 1988, Mrs. Rumbold stated that the clause,
redefines and clarifies the powers of the Secretary of State to pay grants to persons and bodies other than local education authorities whose activities or objects arc in the fields of education, learning or research".
She claimed that the existing powers in the Education Act 1944, Section 100(1)(b), are restricted to the payment of grants for,
expenditure for the purposes of education services provided by the body receiving grant, or on its behalf, or under its management".
This is not strictly true as Section 100 (1) (b) also states that the Secretary of State can give grants for the purposes of educational research.

§
Mrs. Rumbold stated that subsections (1) and (2) enable the Secretary of State to,
pay grant to bodies whose main purpose is the promotion of learning or research".
Examples that Mrs. Rumbold gave are the British Academy and the Royal Society. The implication of her statement is that it is considered that the Secretary of State's power to pay them grants needs clarifying so that the Secretary of State can contribute to their general running expenses as well as their educational activities.

§
Can we ask the Minister how much the Secretary of State already pays to the British Academy and the Royal Society and how much more he intends to pay for general running expenses once this Bill is enacted? We also want to know what else the Government may wish to grant aid under this power. The key difference between Clause 183 and Section 100 of the 1944 Act is that the Bill speaks of the,
promotion of learning or research
and Section 100 in the 1944 Act speaks of "educational services" and "educational research".

§
Examples of bodies which the Government will now have power to grant aid include bodies doing research for star wars, politically oriented research (such as the Centre for Policy Studies) or, indeed, a body to identify the political views of teachers.

§
The Secretary of State should not be allowed such powers with only minimal parliamentary scrutiny of the need to make regulations under subsection (2). I ask what is the procedure for making these regulations? What might a left wing Secretary of State make of such powers?

§
Subsection (3) amends the 1944 Act to allow the Secretary of State powers first to provide grants for expenditure connected with educational services and, secondly, grant for proposed educational provision. The power to provide grant for proposed educational services is no doubt necessary for the Government to assist the body they intend to set up to provide advice and so on for schools wishing to achieve grant-maintained status. This body was referred to in the consultation paper on grant-maintained schools issued in July 1987. Paragraph 7 states:
The Government also intends to assist the creation of an association or trust of the DES to promote the development of grant-maintained schools".

§
Without the additional grant making power, it is difficult to see how the Government could financially assist such a body to come into being. Mrs. Rumbold, in the debate I referred to earlier, went as far as saying that,
Subsection (3) redefines the group of bodies other than local education authorities that can be grant-aided and the activities for which grants can be paid"—[Official Report, Commons, 21/3/88; col. 169.]
She did not finish her sentence due to the imposition of the guillotine. Perhaps the Minister could finish it for her.

§
Given the general direction of the Government's desire to privatise local authority services and increase competition, these powers could be used to assist a body that wishes to set up its own educational psychological service or even speech therapy service to rival an LEA's. With government grants, in the aura of local financial management and grant-maintained schools it could well be possible for a private educational psychological service to undercut that of an LEA and thus reduce even more the overall planning function of the LEA. We want the Minister to tell us the services the Government wish to see develop through this grant-giving power which they cannot provide already through existing legislation. We should like some clarification, please. I beg to move.

If there is life after the guillotine, I shall do my best to clarify the situation. Clause 183(1), to which the first amendment of the noble Baroness refers, is a purely technical change to existing grant-making powers intended to put beyond doubt the power of the Secretary of State to give grants to such bodies as the Royal Society and the British Academy. Since the noble Baroness asked me specifically what amounts are currently given, I can tell her that in the year 1988–89 the British Academy is due for £14 million and in the same year the Royal Society is due to have £8 million. Future levels are yet to be decided.

The change sought by the amendment to line 38 would nullify the purpose of the subsection as would the further amendment to lines 39 and 40. I think the second amendment is slightly defective. There appears to be a word missing.

I was surprised by the latter amendment. It would provide a far wider grant-making power which we certainly do not seek. I hope
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that the noble Baroness will be reassured by the explanation that the intention of Clause 183(1) is purely technical in nature.

It is not part of the intention of the clause that the power should be used to fund grant-maintained schools or higher education institutions directly rather than through funding councils or anything else.

I shall read what the Minister has said. I am not at all sure that I am satisfied but I shall not pursue the matter at this time of night. If I wish to come back I shall do so at the next stage and I beg leave to withdraw the amendment.

§
.—(1) Any person who, in the course of business, grants, offers to grant or issues any invitation relating to any award—

(a) which may reasonably be taken to be an award granted or to be granted by a United Kingdom institution; and

(b) which either—

(i) is described as a degree; or

(ii) purports to confer on its holder the right to the title of bachelor, master or doctor and may reasonably be taken to be a degree;

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

§
(2) Subsection (1) above does not apply as respects anything done in relation to any recognised award; and for the purposes of this section a "recognised award" means—

(a)any award granted or to be granted by a university, college or other body which is authorised by Royal Charter or Act of Parliament to grant degrees;

(b) any award granted or to be granted by any body for the time being permitted by any body falling within paragraph (a) above to act on its behalf in the granting of degrees; or

(c) such other award as the Secretary of State may by order designate as a recognised award for the purposes of this section.

§
(3) An order under subsection (2)(c) above may designate as a recognised award either—

(a)a specified award granted or to be granted by a person named in the order; or

(b) any award granted or to be granted by such a person.

§
(4) Where in any proceedings for an offence under this section it is shown—

(a) that the defendant granted, offered to grant or issued an invitation relating to an award; and

(b) that an address in the United Kingdom was given in any document issued by the defendant certifying the granting of the award or containing the offer or invitation in question;

the award shall he presumed to fall within subsection (1)(a) above unless it is shown that the defendant took reasonable steps to inform the person to whom the award was granted or any member of the public or particular individual to whom the offer or invitation was addressed that the award was not granted or to be granted by a United Kingdom Institution.

§
(5) Where an offence under this section which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was
553
purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall he liable to be proceeded against and punished accordingly.

§
(6) Proceedings for an offence under this section shall not, in England and Wales, he instituted except by or on behalf of a local weights and measures authority or the chief officer of the police for a police area.

§
(7) Nothing in this section shall apply in relation to the granting of an award to a candidate who—

(a) before 12th May 1988 began to undertake a course of education approved by the person granting the award in preparation for an examination to qualify for the award; and

(b) whether before or after that date, passes the examination;

and in this subsection "examination" includes any form of assessment and the reference to passing an examination shall he construed accordingly.

(a)"a United Kingdom institution" means any institution established in the United Kingdom, other than one which is, or is affiliated to or forms part of, an institution whose principal establishment is situated outside the United Kingdom; and

(b) the reference to issuing an invitation relating to any award includes in particular the issuing of any circular, prospectus or advertisement relating to an award, whether addressed to the public generally, to any section of the public, or to any particular individual or individuals.").

§
The noble Baroness said: In speaking to this amendment I should also like to speak to Amendments Nos. 280C, 280D, 280E, 281ZA, 281CC, 286A and 288.

§
These four new clauses and their consequential amendments seek to protect the reputation of UK degrees. They have been tabled following wide consultations in response to increasing demands to stop the worst of the trade in worthless academic qualifications. The response to our consultation exercise held late last year was overwhelmingly supportive and strongly endorsed our long-standing desire to introduce legislation to protect the good name of the UK higher education system. I hope that they will meet with similar approval in this Committee.

§
Consultations confirmed our belief that the worst of the abuse was to be found in the degree field and it is here that we have concentrated our efforts. While some Members of the Committee may have wished to see protection for other qualifications, we do not believe that it would be practicable to extend our proposals to the much larger and diverse non-degree field. While a UK degree can be related to an institution specifically authorised by Royal Charter or Act of Parliament to award it, a diploma, for instance, can quite properly relate to anything ranging from a cookery course to a postgraduate qualification.

§
I could deal in detail with each clause if Members of the Committee wish. However, in view of the hour I shall merely say that the clauses are technical and unusual in the experience of the Department of Education and Science. That applies especially to the first clause relating to Amendment No. 280 because it creates a new criminal offence. They have one clear objective: namely, to protect the quality and good name of our higher education system. The routes to the recognition of UK degrees will in future rest exclusively on well-established processes whereby an institution is able to demonstrate not just to the wider academic community but to the world at large the quality of what it provides. I am sure that this is the way to ensure that the British higher education system remains among the best in the world and that
554
its reputation is not undermined by a handful of unscrupulous operators. I beg to move.

We are glad to welcome these new clauses. They have been a long time coming. I understand that for the past 15 years efforts have been made to bring them into force. At last the DES and the civil servants have found a way of providing them. I understand that other countries have had such provisions for a long time.

I should like to ask the Minister one question. I understand that the local weights and measures authority will be enforcing this section. I also understand that there is now a shortage of inspectors owing to the cuts in local authority expenditure. The figures I have show that in 1983, of the establishment of 1,642, there were 85 unfilled posts because of financial restrictions. There were further reductions after the abolition of the metropolitan counties. Can the Minister tell the Committee whether more money will be provided for the officers so that they can pursue this new job?

By some strange mistake on the part of the bureaucracy, I find my name coupled with that of the noble Baroness, Lady Hooper, on Amendment No. 286A. I think this was intended to be one of the amendments on road safety education. Nevertheless, I am very happy to be coupled with her in this particular area because this is an important one. There is some ribald laughter from the official Opposition Front Bench, which I do not understand. A number of people have been rather badly dealt with by people offering unrecognised degrees and I certainly wish to support the amendment.

It appears that the enforcement of the provisions by weights and measures authorities was discussed with representatives of the local authority associations. There is no specific provision for additional costs, but we believe that the local authority associations felt that these were suitable bodies as they will be appropriately trained and equipped to cope with the problems.

§
(1) It shall be the duty of every local weights and measures authority to enforce the provisions of section (Unrecognised degrees) of this Act within their area; and such an authority shall, whenever the Secretary of State so directs, make to him a report on the exercise of their functions under this section and section (Unrecognised degrees) of this Act in such form and containing such particulars as he may direct.

§
(2) A duly authorised officer of a local weights and measures authority may, at all reasonable hours and on production, if required, of his credentials, exercise the following powers, that is to say—

(a) he may, for the purpose of ascertaining whether any offence under section (Unrecognised degrees) of this Act has been committed, enter and search any premises which he reasonably believes may be used for or in connection with the carrying on of a business which is concerned with the granting of awards which are not recognised awards;

555

(b) he may, for that purpose, require any person carrying on or employed in connection with any such business to produce any documents or other items relating to the business and may take copies of any such document;

(c) he may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reason to believe that it may be evidence of the commission of an offence under that section; and

(d) he may seize and detain anything, which he has reason to believe may be evidence of the commission of an offence under that section.

§
(3) In subsection (2) above "recognised award" has the same meaning as in section (Unrecognised degrees) of this Act.

(a) is satisfied that there is reasonable ground to believe that any documents or other items which a duly authorised officer has power under this section to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of an offence under section (Unrecognised degrees) of this Act; and

(b) is also satisfied either—

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this subsection has been given to the occupier; or

(ii) that an application for admission, or the giving of such a notice would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return;

the justice may be warrant under his hand, which shall continue in force for a period of one month, authorise an officer of a local weights and measures authority to enter the premises, if need be by force.

§
In the application of this subsection to Scotland, "justice of the peace" shall be construed as including a sheriff.

§
(5) An officer seizing any documents or other items in the exercise of his powers under this section shall inform the person from whom they are seized.

§
(6) An officer entering any premises by virtue of this section may take with him such other persons and such equipment as may appear to him necessary; and on leaving any premises which he has entered by virtue or a warrant under subsection (4) above he shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them.

§
(7) Section 29 of the Trade Descriptions Act 168 (penalty for obstruction of authorised officers) shall apply as respect the obstruction of an officer acting in pursuance of this section as it applies as respects the obstruction of an officer acting in pursuance of that Act but with the substitution in subsection (1)—

(a) of a reference to this section for the reference to section 28 of that Act; and

(b) of a reference to his functions under this section for the reference to his functions under that Act.

§
(8) Nothing in this section shall be taken to compel the production by a solicitor of a document or other item containing a privileged communication made by or to him in that capacity or to authorise the taking of possession of any such item which is in his possession.

§
(9) Nothing in this section shall be taken as authorising a local weights and measures authority in Scotland to institute proceedings for an offence.").

§("Identification of bodies granting or providing courses for recognised awards.

§
.—(1) For the purposes of sections (Unrecognised degrees)and (Unrecognised degrees: enforcement) of this Act, any body for the time being designated by order made by the Secretary of State as appearing to him to be a recognised body shall be conclusively presumed to be such a body.

§
(2) The Secretary of State shall compile, maintain and publish by order a list including the name of every body which appears to him to fall for the time being within subsection (3) below.

§
(3) A body falls within this subsection if it is not a recognised body and either—
556

(a) provides any course which is in preparation for a degree to be granted by a recognised body and is approved by or on behalf of the recognised body; or

(b) is a constituent college, school or hall or other institution of a university which is a recognised body.

§
(4) In this section "recognised body" means a body falling within section (Unrecognised degrees) (2)(a) or (b) of this Act.").

§
.—(1) An Order in Council under paragraph 1(1)(b) of Schedule I to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is only made for purposes corresponding to the purposes of sections (Unrecognised degrees), (Unrecognised degrees: enforcement) and (Identification of bodies granting or providing courses for recognised awards) of this Act—

(a) shall not be subject to sub-paragraphs (4) and (5) of paragraph 1 of that Schedule; but

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

§
(2) Her Majesty may by Order in Council direct that those sections shall extend to any of the Channel Islands with such adaptations and modifications (if any) as may be specified in the Order.").

§
.—(1) The Audit Commission for Local Authorities in England and Wales (the Commission) may, at the request of the appropriate body, promote or undertake studies desiened to improve economy, efficiency and effectiveness in the management or operations of the Polytechnics and Colleges Funding Council, a higher education corporation or the governing body of a grant-maintained school.

§
(2) For the purposes of subsection (1) above "the appropriate body" is—

(a) with respect to studies relating to the Polytechnics and Colleges Funding Council, the Council;

(b) with respect to studies relating to a higher education corporation, that Council or the corporation; and

(c) with respect to studies relating to the governing body of a grant-maintained school, the governing body.

§
(3) The Commission may, at that Council's request, give the Council advice in connection with the discharge of the Council's functions under paragraph 18(2)(h) of Schedule 5 to this Act.

§
(4) The Commission may, at the request of a higher education corporation or the governing body of a grant-maintained school—

(a) advise them in connection with the appointment of persons to audit their accounts; and

(b) arrange for their accounts for any financial year to be audited by such of the Commission's officers as the corporation or governing body may appoint.

§
(5) References in subsection (4) above to the accounts of a higher education corporation include references to any statement of accounts prepared by the corporation under paragraph 18 of Schedule 5 to this Act.

§
(6) The Commission shall charge the body at whose request any services are provided under this section such fees as will cover the full cost of providing them.").

§
The noble Baroness said: This amendment extends the powers of the Audit Commission so that it may, if requested to do so, provide services to the PCFC, the new higher education corporations and grant-maintained schools. The powers were foreshadowed in the DES consultative document on Accounting and Auditing in Higher Education. It is eminently sensible to make the commission's expertise available in this way and I commend the amendment to the Committee. I beg to move.

We welcome this amendment. I should like to ask two questions, simply to see how the Government's mind is working. It is the converse of an earlier amendment. Why is the UFC not included under this heading? Why should it not be able to call on the Audit Commission, since on both sides of the House we strongly approve of the Audit Commission and its work? Similarly, while I notice that grant-maintained schools come under this heading, why have CTCs been left out? I do not want to detract from the amendment, of which we strongly approve, but I am interested to know the reason for those two limitations.

§The Minister of State for Defence Procurement (Lord Trefgarne) moved Amendment No. 280EB:
Page 165, line 45, at end insert ("in their capacity as such an authority").

§
The noble Lord said: On behalf of my noble friend, I rise to move Amendment No. 280EB and to speak at the same time to Amendments Nos. 280EC and 280FB. These are essentially tidying up or clarificatory amendments. If your Lordships would like a five minute blast, I shall by happy to give it. In the meantime, I beg to move.

§Baroness David had given notice of her intention to move Amendment No. 280FCA:
Page 166, line 25, after ("order") insert ("after consultation with the local authority associations, any local authority directly concerned and any organisations of employers affected").

§
The noble Baroness said: I should just like to make a few comments on the clause. We feel that it is an extremely important clause and we have very serious concerns about it. I do not intend to move the
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amendments in my name but I should like to say that we shall return to this matter in much greater detail at the next stage of the Bill.

§
We have three concerns: first, the extent of the powers given to the Secretary of State; secondly, that the order made under this clause will not be subject to further positive parliamentary scrutiny; and thirdly, that the potential for abuse is considerable. Priority must be given to protecting the rights of individual employees, and the powers given under the clause could be used to deprive them of the rights given to them by Parliament in legislation.

§
Government Ministers have declared that that is not the intention, but Parliament has a duty to protect individuals from government abusing delegated power, and the statutory rights of individuals should be protected by clear reference in the clause. Therefore, I shall not move the amendments in my name but I give notice that I shall be returning to this matter at the next stage of the Bill and hope to spend a considerable time on this clause.

Page 166, line 33, at end insert ("Provided that the rights of employees are not thereby diminished or otherwise adversely affected.").

§
The noble Lord said: I apologise because of the late hour for making a slightly longer speech than those which have been made in the last few minutes, but Clause 186 represents to employees in the education service perhaps the most disturbing single feature of the Bill. It appears to be something of a drafter's afterthought inserted in as Clause 139 of the Bill as originally published upon the late realisation that the Bill's proposals for the local financial management of schools and higher and further education institutions could have serious consequences for employment law.

§
The clause was later drawn in the widest possible terms to permit the Secretary of State for Education and Science to modify any enactment relating to employment as he considers necessary or expedient—and I have to say I am afraid of the word "expedient"—to give effect to delegated financial management. The scope of the legislation—and I am sure Members of the Committee already appreciate this—that falls under this clause is vast. It includes the Employment Protection Act 1975, the Employment Protection (Consolidation) Act 1978, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Health and Safety at Work Act 1974. I am sure that that recital gives an indication of the widespread probable effect of the clause—and more, as my noble friend says.

§
All these measure and their precursors were the subject of protracted public and parliamentary debate, consultation and indeed controversy. They have generated a vast quantity of subsiduary legislation. If enacted, Clause 186 would enable the Secretary of State—he and his predecessors were not responsible for the legislation in question—to modify the many and varied rights of employees in schools and higher education institutions, subject to delegated financial management whenever and however he may think fit, checked only by negative resolution of both Houses. By any standards, that is appallingly bad law. That a government should contemplate giving such vast power to a Secretary of State is an insult to the authority of Parliament. The need for such a clause is doubtful.

§
The scheme of delegated financial management contemplated by the Bill gives powers to governing bodies of schools covered by delegated financial management that would normally be regarded as the powers of employers. By Schedule 2 in particular, governing bodies would have effective powers of hiring and firing. I take it that that is not in dispute. However, the employers of teaching and other staff in the affected institutions would remain the local education authorities except in the voluntary aided schools where presently teachers are employed by the governing bodies, subject to restraining powers vested in LEAs under Section 24 of the Education Act 1944.

§
Employment protection rights would remain enforceable against these employers. This being so, assuming that LEAs would retain powers to control governing bodies at least to require that the governing bodies act within the law in relation to LEA employees, it may be that Clause 186 is simply unnecessary. However, it may be necessary for clarification purposes to ensure that governing bodies clearly have the same duties as employers.

§
As yet, it seems that no one has thought through in detail how the employment legislation might need modification even for the benefit of employees. The Minister of State has given bland assurances of the Government's good intent, and positive intentions are expressed in the Government's own brief briefing on the clause for Members of the Committee. I have some quotations from the Minister of State, but in view of the lateness of the hour perhaps the Committee will accept the statements made in another place. Those serve to show only how ill-considered the measure is.

§
The Government are not unsympathetic to demands for relaxation of the employment protection laws in favour of employers, and have relaxed them for small businesses. The clause would enable the Secretary of State of modify employment protections laws for school and college staff in ways as yet unforeseen if some rule were found to be in his view an obstacle to the kind of delegated financial management that he wants to see in operation. The clause will affect most school and college staffs, and will probably affect all in due course.

§
Delegated financial management will apply to all secondary schools and to primary schools with more than 200 pupils in the first phase. However, the Secretary of State will have power by order to extend this application to all schools. As the Committee will
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know, this is contained in Clause 33(1). Strenuous efforts were made in another place to modify the Bill on this point. We on this side of the Committee seek amendment of Clause 186 which does not attack the structure of DFM but nonetheless seeks to make Clause 186 acceptable in isolation. The amendment would limit the effect of the clause to that which the Government claim to be its true intention. The debate on the amendment should therefore at least be a test of the Government's protestations about the innocence of their proposal. On that issue we look forward to the reply.

§
Clause 186 is disturbing not only for school and college staffs but for the law-making process. If enacted, it could operate as a precedent for moving law-making power even further in favour of government and away from Parliament. The Government will no doubt deny that, but we on this side of the Committee feel that the implication is quite clear.

§
There have been suggestions that the clause is necessary to overcome the alleged difficulty of getting rid of incompetent teachers. That this difficulty exists is a myth. Teachers have no more statutory rights than other employees, and every LEA has negotiated dismissal procedures. Any complications which exist in these procedures derive from the fact that at least since 1944 governing bodies have had a role to play and an influence to bring to bear upon LEAs which employ teachers.

§
The Government intend to enhance their role, not diminish it, and therefore the Government's proposals add to the complications. Perhaps I may say that as an education officer I had considerable experience in dealing with governing bodies. Some of the proposals in the clause and in other parts of the Bill highlight the difficulties that may arise. Clause 186 has nothing to do with this. Schedule 2 to the Bill deals with the dismissal powers of governors in DFM schools. Clause 186 cannot be justified on this ground.

§
The amendment is not so much concerned with getting rid of teachers as with appointing them. We have all had letters on this aspect of the Bill. I should like to quote from one letter by way of illustration. It came from a head teacher in Essex. She said:
I would ask you to support the deletion of Clause 186. We have a very serious problem over teacher recruitment and retention and we will need even more teachers to fulfil the needs of the national curriculum in the Bill. If this clause is passed, I am sure fewer people would even consider teaching as a career because this will be a sword held over their heads".

§
There speaks the practical voice straight from the school—no academic or theoretical argument there. I wonder to whom the Secretary of State was listening when he drafted the clause.

§
Ministers have given repeated assurances in another place that employees' rights will be safeguarded. At the centre of this debate is the fact that these issues are far too important to be dependent on verbal assurances given during debate. Naturally we welcome the assurances, but the very wording of Clause 186 is such as to create doubt not just about those promises but even whether genuine assurances could be carried out in certain circumstances. Ministers' intentions may well be what they have said, but that is not what the clause says, or, I venture to suggest, how a court might interpret it.

§
The widespread concern among all kinds of employees in the education service must be allayed. I believe that the straightforward and unequivocal nature of the amendment meets the real assurances being looked for by so many people. I commend the amendment to the Committee. I beg to move.

I want to make it quite clear that this clause is not about diminishing employees' rights, or adversely affecting employees. Rather, the clause is about ensuring that power and responsibility for the governing body go hand in hand. Where the governing body takes a decision, it, rather than the local education authority, must be answerable for it. Employees must be able to claim and enforce their rights against the governors. The amendment is therefore unnecessary, as the clause is not about diminishing employees' rights.

The addition of such wording to the Bill would also be unacceptable as it could well lead to disputes about what constitutes diminution in employees' rights and when these rights are adversely affected. For example, some people might be tempted to claim that simply having decisions taken at school level rather than LEA level is a diminution of rights. We do not accept that. We make no secret of the fact that many decisions will be taken at school or college level under financial delegation, and that employment rights should therefore be seen to operate at the school level.

The power for a Secretary of State to amend employment legislation by order is hardly unprecedented. Section 149 of the 1978 Employment Protection (Consolidation) Act, passed by a Labour Government, gives the Secretary of State wide powers to modify and vary the operation of numerous parts of that Act by order. The section contains no provision that such modifications must not diminish employees' rights and no provision for formal consultation. We are therefore already giving assurances on the Bill which go well beyond those in the 1978 Act passed by the Labour Government at that time.

I hope that in the light of those considerations, the noble Lord will not wish to press his amendment.

The Minister has not addressed a central point of great importance. The contract of employment is with the local authority. Therefore, when there is any grievance about the employment conditions of the employee, the action must be against the local authority because that is the body which makes the contract of employment.

The matter was most usefully raised by the noble Lord, Lord Irvine, in connection with the application of the equal-value clauses over equal pay. I know that it is not the right moment to raise the matter but it is of central importance. The Government must clear it up.

I do not know whether the Minister realises that the answers we received the other night showed that the Government had simply not thought about it. Therefore, will the Minister say that he will take it back and, in the light of what was said by the noble Lord, Lord Irvine and, indeed, what has been said tonight, at least look at the conflict here between the body with which the employee has the contract of
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employment and which therefore is legally responsibile for whatever happens—there is no way that that situation can be altered—and the fact that he is giving the right to make the decisions in employment to the governing body with whom the contract is not made?

It was not discussed at great length. We received no answer whatsoever to the question about how the equal-value clauses were going to be applied. That is absolutely essential to the whole issue. Surely it is in the interests of getting the legislation straight. It is not a party point. The issue has not been thought through and it is a matter of some considerable importance.

Although this is not the right moment to discuss the matter further, I urge the noble Lord to take it back and, in the light of the discussions which took place the other night, bring forward an answer on Report.

I can only repeat that the matter was discussed the other night. Of course I recognise that the noble Baroness did not receive an answer which she found to be satisfactory. I am sorry about that. Many staffing decisions will be taken by governing bodies of schools and colleges, with financial delegation, even though—as the noble Baroness said—the LEA will remain the employer of staff, other than in aided schools. It is right therefore that the governors should be accountable for the management decisions they take. Indeed, that is what Clause 186 is about. We did have representation from LEA interests concerned that LEAs might be held to account for an unfair dismissal, for example, when they had had no control over whether the person was dismissed.

However, such interested bodies were reassured when they were told that the governing body will have to respond for its actions before an industrial tribunal because of the operation of Clause 186. I hope that the noble Baroness will understand that there is a difference in perception of this matter here. I fear that it is one that will be most difficult to resolve at this late hour.

One does not necessarily involve every party to a somewhat informal pact in every act that was done in every detail on every platform during its operation.

I also should like to ask the noble Lord, Lord Trefgarne, about the clause. I listened with great interest to what he had to say. It sounded wholly reasonable. With respect it is not what the clause
563
says. The noble Lord said that the clause was concerned with who was to be responsible. The clause says a great deal more than that. It states:
The Secretary of State may by order make such modifications in any enactment … conferring rights on employers … as he considers necessary or expedient".
The noble Lord, Lord Trefgarne, said that it is not intended to diminish the rights of employees. The amendment says the same. Why not agree to it?

I can only add that with regard to the order-making power an assurance has been given that on Report we shall bring forward an amendment to require that there be statutory consultation before any order is made. That consultation will involve local authority employers, trade unions and the bodies representing the interests of the governors of voluntary schools.

I hope that the noble Lord will not take it wrongly if I say that we have heard him in a familiar strain this evening. It is a familiar strain which has not been so familiar this evening. It is a strain which says that that which is irrestible on logical grounds can always be opposed on the grounds that it is unnecessary.

The noble Lord says that the amendment is unnecessary because Clause 186 is not about reducing the rights of employees. We say again what we have said to him on so many occasions. If the clause is not about reducing the rights of employees and if so many people, including representatives of the National Union of Teachers and other teachers' unions, fear that it may be about reducing the rights of employees or that it may be used subsequently to reduce the rights of employees, for goodness sake what is wrong with saying so, as that is the Government's intention?

What is wrong with including at the end of the clause the modest declaratory amendment which my noble friend Lord Dormand wants? The need for the clause has never been made clear by the Government here or in the other place. They have retreated into ambiguity. The fact is that Schedule 2 specifies that the governors have the power to hire and fire. Therefore, the implication of the Bill is that many of the LEA's day-to-day responsibilities will in effect be the responsibilities of the governors.

The Bill makes it clear that the LEAs remain the employers. They are ultimately responsible if people are unfairly dismissed; they are ultimately responsible if health and safety regulations are not observed. The ways in which the Government require modifications to the existing employment Acts are never made clear to us. They are not specified on the face of the Bill.

All right, we do not complain about that if the Government are prepared to say that they will add to the Bill a simple, modest statement that these unjustified and vague commitments are not something to worry about, because they are not intended to undermine the existing rights of employees. For the life of me, I cannot see why the noble Lord resists this at this time of night.

I am afraid that the hour of the night does not hide the fact that to add such a
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declaration would not be a very good idea. It would open up a whole field of useless and undesirable conflict on, for example, what constituted a diminution in employees' rights or when such rights had been adversely affected. I do not believe that that is what the noble Lord has in mind and I am afraid that I cannot agree to the amendment.

The hour of the night affects this because we do not want to press the amendment to a division. But I am sure that the noble Lord has seen the depth and intensity of the feeling on these Benches about the situation which might arise through this clause. I have to say that the reply was extremely unsatisfactory. The Minister skirted round the central point of dispute, he did not deal with it in any shape or form. He is repeating the kind of—I was going to say "bland assurances" but I shall not say "bland"—assurances which have been given in other parts of this Bill. I cannot resist telling the Committee about one of the statements of the Minister of State in another place. I said that I would omit it, but in view of what has been said I found this quite hilarious, though I know that the noble Lords opposite will not find it so. When a similar amendment was being debated in another place, Mrs Rumbold said this:
If the amendment were accepted, Sections 23 and 24 of the Employment Protection (Consolidation) Act 1978 could not be amended and employees could not have protection-
I emphasise this-
against governors trying to deter them from being in a trade union".
I do not want to go into the four or five anti-trade union Acts, but if that is the kind of thing that is being said, frankly, though I hesitate to say it, we cannot trust some of the things being said. We feel very strongly about this and I wonder whether, even now, we could have an assurance from the Minister that he will have another look at the situation.

I think I have gone as far as I can with the assurances that I have offered. For example, I have repeated the assurance about the statutory basis upon which we propose to make the consultation and that we shall ensure that it is properly and sensibly conducted under the auspices of the Bill, with the local authority associations, organisations representing teaching and non- teaching staff and bodies representing the interests of governors of voluntary schools. I hope that the noble Lord will accept the assurance that I give that there is no secret purpose behind this clause in any way adversely to affect the rights of employees. On the contrary, we want to see those rights properly secured, and this clause is intended to achieve that.

Perhaps I may make one point. I think there is a difference between whether there is a covert agenda here and the technical point raised by my noble friend Lord Irvine the other night and by the noble Baroness, Lady Seear, now. It is a point which is worthy of reasoned argument. We shall not go into it now because I think we are all very tired, but I must reiterate the point raised by my noble friend Lady David. We shall discuss the whole of that clause in some detail on Report, but we shall not pursue it now. I think the noble Lord should not be under any illusion: we think there are serious technical sides to this as well as other matters.

§Baroness Young moved Amendment No. 280G:
After Clause 188, insert the following new clause:

§
("Assistance to education of children of British nationality residing for the time being outside the United Kingdom in another member state of the European Community.

§
.—(1) For the purpose of facilitating the free movement of families to take advantage of employment opportunities within other member states of the European Community, the Secretary of State shall take action as specified in subsection (2) to (5) below to assist in maintaining and improving educational standards at British schools situated within other member states and to facilitate access to such schools by the children of British expatriates for the time being residing and working in those states.

§
(2) The Secretary of State shall establish a category of school situated in another member state of the European Community having such characteristics as are specified in subsection (3) below and in regulations which he may make.

(a) provides education for pupils who have attained the age of five but not the age of nineteen years and are of British nationality but are residing in another member state of the European Community; and

(b) has a curriculum approved by the Secretary of State and which is broadly similar to the curriculum the pupil would follow if receiving an education in England and Wales.

§
(4) For the purpose of maintaining and improving the standard of education at such a school, the Secretary of State shall—

(a) make arrangements for the inspection of such a school at appropriate intervals by H.M. Inspectors of Schools, with the school being responsible for the Inspectors' travel and local expenses;

(b) provide on a regular basis to such a school information on educational development in England and Wales and also facilities such as in-service training for teachers as he may consider necessary or desirable to enable the school to continue to offer an education broadly comparable to that available in England and Wales; and

(c) take such measures as he deems appropriate to facilitate the recruitment of British teachers by these schools and in due course their re-employment in the United Kingdom.

§
(5)The Secretary of State shall make an order to establish a Grant Scheme for the purpose of enabling children of parents of British nationality for the time being residing and working in another member state of the European Community, who might otherwise not be able to do so, to benefit from an education at a school in the category described in subsection (2) above and so facilitate their return to a school or institute of higher education in the United Kingdom.").

§
The noble Baroness said: At this late hour I shall speak briefly to this amendment but it is one that I regard as of very considerable importance to us as a country. It is important now and it will be even more important after 1992. The problem with which the amendment tries to deal is that of the education of children of British families working in the European Community who want for their children what might be generally described as a British education. I do not think I need to explain that to the Committee after all the detailed discussion that we have had. I hope that all Members of the Committee will take an interest in this important matter, and I would draw attention to the very valuable report that has been produced on this subject by Sir Mervyn Brown, a former member of the Foreign and Commonwealth Office, which has
566
very wide terms of reference and sets out in considerable detail exactly what the problem is.

§
My amendment is concerned with British schools in Belgium, France, the Federal Republic of Germany, Greece, the Netherlands and Italy. There are other British schools both in Sweden and Switzerland but I do not refer to them because they are not within the European Community. Very broadly speaking they educate about 8,000 children of whom about half are British. They are all independent schools supported by fee paying parents. They are inspected by Her Majesty's Inspectorate and they themselves pay for this service.

§
In an attempt to find out what the expatriate community working in the European Community does for the education of its children the report refers to a survey carried out of some 2,000 British people working in the Community. It showed that just under 50 per cent. send their children to a local British school, about 11 per cent. send them to a boarding school in the United Kingdom, about 21 per cent. send their children to European international schools and about 21 per cent. to local national schools in the country in which they are employed, although there is some reason to think that the latter figure is considerably higher than that. Interestingly, there was a widespread rejection of boarding schools as a solution to the education of the children, particularly among younger parents. This was shown up in a majority of approximately 20:1 in the question that was asked.

§
British people working in the Community want a British type education because they want their children to enjoy the continuity of a British education. They recognise particularly of course in the teenage years—13, 14 and 15—the importance of qualifications such as GCSE and A-level examinations for university entrance and for other forms of higher education. The problem arises because, although some employers will pay for the education of the children in these schools and some people will be able to afford school fees, there are quite a number of families who are not able to afford the fees at all and the fees represent quite a considerable sum of money.

§
If we look in the European Community to see what other countries are doing we discover that France, for example, spends something like £130 million annually on the education of French children abroad, the Federal Republic of Germany some £90 million and Italy some £12 to £13 million. The effect of this money is to provide their children living abroad with an education similar to that which they would have enjoyed had the families been working in their country of origin. Thus a French education for a French child in London costs abot £1,000 a year and about £800 in Brussels. A British type education for a British family living abroad costs some £4,000 to £5,000 a year in either Brussels or Paris.

§
We have all heard a great deal about 1992. We have read of the great campaign that has been conducted by my noble friend Lord Young of Graffham. I think that everyone agrees the importance of that and what it will mean. I hear myself speaking in the Chamber about the Single European Act which I took through when I was a Minister in the Foreign and Commonwealth Office. What we are doing by not helping our own children abroad is handicapping our
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people in Europe. Any businessman going abroad will ask as one of his first questions, "What about the education of my children?". The education of some children will be paid for. Some parents will be able to afford such an education for their children; others will be left out.

§
The object of the amendment is to draw to the attention of the Minister and her colleagues, and also rather more widely to my colleagues in the Department of Trade and Industry, that there is a real problem. The amendment sets that problem out. It also offers a solution. That may not be the best solution. However, a solution is required. I have set the amendment out as a first draft. The problem will not go away. It will only get worse. I have put the amendment down because I believe this to be an important matter. It needs to be addressed by the Government as a matter of urgency. I beg to move.

My name also appears in connection with the amendment and I should like to add my support. There is a very real problem and I hope that if the particular solution is not acceptable to the Government they will come up with another solution.

I hope also that the Government will consider seriously the point which my noble friend Lady Young has made. I can see that the Government may not wish this new subject to be brought into the Bill at this time. However, my noble friend has put her finger on a wrongfully neglected field and I hope that they will reflect on the matter and come up with proposals to remedy the defect.

As my noble friend pointed out, the Government are enthusiastically encouraging British industry to venture out into the Community and to treat the rest of the Community as a single market. Surely the Government should try to make it less difficult and less expensive for those who heed their call by going to live in the Community or sending others to do so to provide a British education for their children. Perhaps a fund should be established to assist the financing of education for those who are eligible at the existing independent schools. Perhaps there is another way. But the Government should concern themselves with the problem.

Other major countries pay attention and devote considerable resources to educating the children of their nationals abroad. We concern ourselves with that problem if our nationals are public servants stationed overseas in the diplomatic service or in the armed services. However, we do nothing for private citizens. At a time when the Government have rightly sought to underline the importance of the private sector in our national life, surely they would find it quite philosophically comfortable to try to do something to satisfy the needs of our businessmen and their employees in the field. I hope that the Minister will be able to promise some consideration for the subject in the future.

I speak, first, as someone who has spent many years working for a multinational corporation that is 60 per cent. Dutch and, secondly, as a member of a party which has a total commitment to the European ideal. Therefore, although there are no names on the amendment from these Benches, we thoroughly support it.

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Another aspect which is singularly lacking in the Bill is any recognition of the existence of the international baccalaureate, which I believe is something we need to take much greater notice of. The amendment so ably moved by the noble Baroness has our full support.

The Earl of Bessborough

At this late hour I should just like to say that I support wholly what my noble friend Lady Young has said and also what my noble friend Lord Reay has said. I do not want to repeat what they have said but, having been connected with many European institutions within the European Community, I know many of these families and I hope that the Government will take the amendment very seriously. I could almost have thought that the Government might have drafted it.

I am grateful to my noble friend for the informative way in which she introduced the amendment.

The Government recognise that British-type schools abroad provide a valuable service for British citizens working overseas and other expatriates who wish to keep their families with them and to have their children educated in a way which minimises the difficulty of subsequent transfer to education in Britain itself. In that context, we welcome the efforts of the Council of British Independent Schools in the European Communities (COBISEC) and we shall continue to offer as much encouragement and practical help to these schools as we can.

The proposed new clause invites the Secretary of State to create a new category of independent school abroad. However, unlike the position in regard to independent schools in England, the Secretary of State would not have power to require registration or to secure any necessary improvements in the provision offered. The Secretary of State would therefore be assuming a responsibility without the power to discharge it and a responsibility which would have to extend to all independent schools abroad capable of meeting the criteria set out.

Turning to the detailed proposals set out in paragraph (4) of the proposed new clause, some of those measures are already the subject of informal arrangements agreed between COBISEC and the Department of Education. The proposal as regards HM Inspectors would in effect formalise the existing practice except that a charge is made—and would have to continue to be made—to cover the cost of HMI's time. Similarly, the department already sends copies of circulars and other relevant publications to COBISEC, and intends to continue to do so.

There are a number of points which I might have made. However, I hope that with these few remarks I have indicated the warmth of the Government's regard for British schools in the European Community, our recognition of their value and our willingness to help in practical ways wherever possible. Nevertheless, we remain unconvinced that it would be sensible for the Secretary of State to establish them as a special category of school at this stage. I trust that my noble friend will not feel it necessary to press the amendment.

I should like to add a word of support for the amendment of the noble Baroness. I am disappointed that the noble Baroness, Lady
569
Hooper, has not responded more positively to the suggestion. There is no doubt that more families will move into the European Community to work, and more families who are unwilling to part from their children and for whom it is an alien idea to send their children back to boarding school in the United Kingdom. As the noble Baroness, Lady Young, said, if we really want to encourage people to work in the Community, in addition to those glossy brochures there must be a leaflet setting out the educational possibilities.

It is an enormously important and very timely change that the noble Baroness is suggesting. It would be a response to the needs of a growing number of families who find themselves working in the Community. I think that it is very disappointing that the noble Baroness, Lady Hooper, has not made a more positive response.

I am very grateful indeed for the support I have received from all parts of the Chamber. I am particularly grateful to the noble Baroness, Lady David, and the noble Lord, Lord Tordoff, and to my noble friend Lord Reay, who I think made an extremely important point about the Government supporting the private sector, particularly the smaller business and the self-employed, who will be most affected.

I must say to my noble friend Lady Hooper that I am grateful for the points that she made about the British schools. However, the point which she and her colleagues must take on board is not so much the warmth towards British schools but the help that will be required by British people working in the Community. If we really want to handicap people going to work in Europe we are going the right way about it by not doing anything to help with the education of their children.

I do not intend to press this amendment at this time of the night, nor shall I advance the argument further, though I am somewhat tempted to do so because I know that it has a lot of support. However, I give notice that I shall return to this matter, if not at a later stage in the Bill then at a later stage in this Parliament, because I think that it is far too important a matter just to let drop. I hope that my noble friend will look carefully at what has been said and reflect further on the matter. I beg leave to withdraw the amendment.

§
. In Part VII of the Race Relations Act 1976 (Codes of Practice) after section 47 there shall be inserted—
47A—The Commission may issue codes of practice containing such practical guidance as the Commission think fit for eliminating discrimination in the field of education; and subsections (2) to (11) inclusive of section 47 shall apply with the following modifications:

(i) the obligation to consult under subsection (3) shall be with such organisations, or bodies, as appear to the Commission to be appropriate having regard to the contents of the draft Code;

(ii) for the references to an industrial tribunal in subsection (10) there shall be substituted references to a county court or a sheriff court as appropriate.".").

§
The noble Baroness said: This is a new clause and its purpose is to amend Section 47 of the Race Relations Act so as to extend the Commission for Racial Equality's code-making powers to the field of education.

§
Under Section 47 of that Act the commission has the power to issue codes of practice for the elimination of discrimination in the field of employment. So far it has issued one such code, which, after extensive consultation, was presented to Parliament and approved by the Secretary of State in April 1984. As a result of that procedure the employment code represents a greater degree of consensus and carries more weight than ordinary guidance documents.

§
In its review of the Race Relations Act submitted to the Home Secretary in June 1985 the commission recommended that its code-making powers should be extended to other areas. In the commission's view there is a strong case for extending code-making powers to the field of education. In particular, the results of formal investigations by the commission into allocations, suspensions, English as a second language and medical school admission indicate that racial discrimination exists in several areas of educational provision. That has been confirmed by academic research, and the Swann Report drew specific attention to the possibility of unintentional discrimination in educational practices and procedures. Swann also pointed out that it was the commission's unique duty to use its statutory powers to eliminate such discrimination.

§
From informal consultations with educationists, including chief officers, governors and head teachers, it is clear to the commission that an education code would be welcomed and in fact is regarded as long overdue. In particular, many LEAs and individual schools and colleges are keen to ensure that education is provided without discrimination and they have expressed to us the need for a document that systematically sets out their responsibilities under the Race Relations Act.

§
One of the consequences of the Education Reform Bill will be that grant-maintained schools, polytechnics and colleges of education will no longer be bound by the duties laid on LEAs by Section 71 of the Race Relations Act, and the same will be true of city technology colleges. The governing bodies of all those institutions will have new and increased responsibilities for aspects of provision—admissions, suspensions, appointments and special needs—where discrimination may occur. An authoritative statutory code will assist them in discharging those responsibilities without discrimination. The commission regards the extension of code-making powers to education as a way of helping those responsible for education to ensure that provision is within the law.

§
When code-making powers were debated as new Clause 21 in Standing Committee J on 8th March, the Secretary of State indicated that he had doubts about the need for a statutory code though he might be persuaded if it was confined to eliminating discrimination. Such a code, not touching on controversial issues, might therefore be acceptable to him. The commission would be pleased to have an amendment to this effect and presumably would be prepared to propose a code unless the Government
571
would take on the job themselves. As a precedent, the Government have already agreed to an amendment to the Housing Bill to grant the commission code-making powers in the field of housing. So I hope that the Government will look kindly on this amendment. I beg to move.

The Government are sympathetic to the idea of a code, but we believe that it should be non-statutory. This is a sensitive area and the issues raised are best dealt with in non-statutory guidelines. The Commission for Racial Equality already has power, which it has not used, to issue a non-statutory code, and the Government would encourage it now to do so.

The department would be happy to have discussions and to offer guidance to the commission on the contents of a statutory code and it would provide useful advice on what practices could constitute discrimination. We should expect it to carry considerable weight with local education authorities and schools. In the Government's view, it would be preferable to proceed in this way before seeking to legislate.

We would then have an opportunity to assess the need and appropriateness of the statutory code. I can, however, assure the noble Baroness that the government will consider carefully the arguments in favour of the statutory code which have been advanced by her. Meanwhile, I hope that in the light of my remarks she will feel able to withdraw her amendment.

§The Earl of Arran moved Amendment No. 281AB:
Page 170, line 5, after ("Act") insert ("which amends or repeals any provision of an Act").

§
The noble Earl said: This amendment would provide that only Acts should be subject to the negative procedure. This is more consistent with existing practice as amendments to charters can be made without any parliamentary procedure. I beg to move.

§Baroness Hooper moved Amendments Nos. 281CA to 281D:
Page 172, line 29, at end insert ("section (Extension of powers as to trusts for religious education);").Page 172, line 29, at end insert ("section (Schemes under the Endowed Schools Acts);").Page 172, line 36, at end insert ("section (Unrecognised degrees: Northern Ireland and Channel Islands);").Page 173, line 1, leave out ("paragraphs 51 and") insert ("paragraph").

§
8A. In Section 2(b) of the Education (Miscellaneous Provisions) Act 1953 (power to require local education authority to defray expenses of establishing controlled school limited to cases where accommodation would otherwise have been provided in some other voluntary school), for the words "voluntary school" there shall be substituted the words "school which is or was either—

(i) a voluntary school; or

(ii) a grant-maintained school which was or had been a voluntary school immediately before it became a grant-maintained school".").

§
Page 201, line 38, leave out paragraph 10 and insert—
("10. A grant-maintained school shall be an exempt charity for the purposes of the Charities Act 1960, and paragraph (e) of Schedule 2 to that Act (institutions connected with institutions which are exempt charities for the purposes of that Act by virtue of the preceding provisions of that Schedule) shall apply in relation to an institution administered by or on behalf of a grant-maintained school as it applies in relation to an institution included in that Schedule above that paragraph.").

§
11A. In paragraph 6 of Schedule Ito the Tribunals and Inquiries Act 1971 (tribunals under direct supervision of the Council on Tribunals), after paragraph (b) there shall be inserted the following paragraph—
(c) appeal committees constituted for the purposes of section 48(5)(d) of the Education Reform Act 1988.").

§
Page 207, line 16, leave out paragraph 57 and insert—
("57.—(1) Subject to sub-paragraph (2) below, a higher education corporation and any successor company to a higher education corporation (within the meaning of section 113(5) of this Act) shall be an exempt charity for the purposes of the Charities Act 1960.(2) Sub-paragraph (1) above shall only apply in relation to any such successor company at a time when any institution conducted by the company is for the time being designated under section 113 of this Act.(3) Paragraph (e) of Schedule 2 to that Act (institutions connected with institutions which are exempt charities for the purposes of that Act by virtue of the preceding provisions of that Schedule) shall apply in relation to an institution administered by or on behalf of—

(a) a higher education corporation; or

(b) any such successor company which is for the time being an exempt charity for the purposes of that Act by virtue of sub-paragrapgh (1) above;

as it applies in relation to an institution included in that Schedule above that paragraph.").Page 212, line 46, leave out from ("is") to end of line 47 and insert ("administered by an education authority").

§
Page 215, line 45, at end insert—
("94. The following paragraph shall he substituted for paragraph 16 of Part III of Schedule 2 to that Act—
"16.—(1) Pending the coming into force of the articles of government for a new school which will be a county or controlled school—

(a) the dates at which the school terms and holidays are to begin and end shall be determined by the local education authority; and

(b) the times at which the school session or, if there is more than one, each school session is to begin and end on any day shall be determined by the temporary governing body after consultation with the authority.

(2) Pending the coming into force of the articles of government for a new school which will be an aided school—

(a) the dates and times at which the school terms and holidays are to begin and end; and

(b) the times at which the school session or, if there is more than one, each school session is to begin and end on any day;